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Full text of "North Carolina Register v.14 no. 14 (1/14/2000)"

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NORTH£AROLINA 

REGISTE 






^"'^^^S^ 




VOLUME 14 • ISSUE 14 • Pages 1218 - 1341 

'^ t \^ 

January 14, 2000 



IV 




W \\\ 

IN THIS ISSUE 

EHR - Notice of Intent to Adopt Temporary Rules (Hurricane Floyd) 

Voting Right Letter 
"I Agriculture 

Commerce ,„^^_, _J^ 

Environment and Natural Resources 

Health and Human Services 

Insurance 

Labor :« // 

Plumbing, Heating & Fire Sprinkler' 

Social Work, Certification Board .< 
]f Substance Abuse Professionals 
^Transportation ** **'„^^ 
SiiRules Review Commission 
-Contested Case Decisions. 






JKmf 



PUBLISHED BY 

The Office of Administrative Hearings 

Rules Division 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

Telephone (919) 733-2678 

Fax (919) 733-3462 



RECEIVED 

JAN 2 4 2000 

KATHRINE R. EVERETT 
UW LIBRARY 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult with the agencies below. The bolded headings are typical issues which the given' 
agency can address, but are not inclusive. 



Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc 

Office of Administrative Hearings mmm, m ip^ ^m^ "'"" 

Rules Division _^M%. M Km Mr^ 

Capeiiart-Crocker House JP- _,..,«------ (919)733-2678 

424 North Blount Street .j^::::^--^^ (919) 733-3462 FAX 

Raleigh, North Carolina 27601-2817 x^v.. 



contact: Molly Masich, Director APA Services 

#/ Ruby Creech, Publications Coordinator 



mmasich@oah. state. nc 
rcreech@oah.state.nc. 



D // m. 

Fiscal Notes & Economic Analysis 

i Office of State Budget and Management 
/ 116 West Jones Street 
11 Raleigh, North Carolina 27603-8005 



contact: Warren Plonk, Economist III 



Rule Rieview and Legal Issues 



\\ 



Rules Review Commission 
% 1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27605 



contact: Joe DeLuca Jr., Staff Director Counsel 




(919)733-7061 
(919) 733-0640 FAX 

wplonk@osbm.state.nc 



(919) 733-2721 
(919) 733-9415 FAX 



\\\ 



Bobby Bryan, Staff Attorney 



Legislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building W^t%Mii^ 

300 North Salisbury Street ''"''--^^i^--.-.^ (919)733-2578 

Raleigh, North Carolina 27611 '*^ ^''^--^^^^iilZr (919) 715-5460 FAX 




I 



contact: Mary Shuping, Staff Liaison 



marys ©ms.ncsa.state.nc.us 






County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

215 North Dawson Street (919) 715-2893 

Raleigh, North Carolina 27603 



contact: Jim Blackburn or Rebecca Troutman 

NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11. 13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 14 
Pages 1218 - 1341 



January 14, 2000 



This issue contains documents officially filed 
through December 21, 1999. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

Camille Winston, Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Linda Dupree, Editorial Assistant 

Jessica Flowers, Editorial Assistant 



IN THIS ISSUE 



I. IN ADDITION 

Environment and Natural Resources 1218-1221 

Voting Rights Letters 1222 



II. RULE-MAKING PROCEEDINGS 
Agriculture 

Veterinary Division 1223 

Transportation 

Motor Vehicles, Division of 1223 



III. PROPOSED RULES 

Environment and Natural Resources 

Environmental Management 1237 - 1238 

Health Services 1238 - 1242 

Health and Human Services 

Controller's Office/Departmental Rules 1224-1225 

Insurance 

Financial Evaluation Division 1226 - 1234 

Life and Health Division 1234-1237 

Property and Casualty Division 1225 - 1226 

Special Services Division 1237 

Licensing Boards 

Plumbing, Heating & Fire Sprinkler 1242-1249 

Social Work, Certification Board 1249-1259 

Substance Abuse Professionals 1259 - 1263 



IV. TEMPORARY RULES 
Commerce 

Information Technology Services 1264 - 1282 

Environment and Natural Resources 

Forest Resources , Division of 1316-1317 

Health and Human Services 

Facility Services 1282-1315 

Labor 
Elevator & Amusement Device 1315 - 1316 



V. RULES REVIEW COMMISSION 1318-1324 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1325-1333 

Text of Selected Decisions 

99 EHR 1660 1334-1335 

99 OSP 0625 1336 - 1338 

99 OSP 0739 1339 - 1341 

VIL CUMULATIVE INDEX 1-96 



North Carolina Rei^isteris. published semi-monthly for SI 93 per year by the Office of Administrative Hearings, 424 North Blount Street. Raleigh. NC 
27601. (ISSN 1.3200604) to mail at Periodicals Rates is paid at Raleigh. NC. POSTMA.STER: Send Address changes to theM>rr/( Carolina Register. 
PO Drawer 27447. Raleich. NC 2761 1-7447 



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''°"™"»^'''°™°'^«"™™ 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCACj has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC Is the title. Each major department In the North Carolina e.xecutive 
branch of government has been assigned a title number. Titles are further broken down Into chapters which shall be 
fuimerlcal In order. The other nro. subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Acupuncture 


1 


~> 


Agiiculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safety 


Electrolysis 


19 


13A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


22 


18 


Secretary of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Family Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


-n 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



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IN ADDITION 



Notice of Intent to Adopt Temporary Rules 

The NC Department of Environment and Natural Resources plans to adopt temporary rules for the Expenditure of 
unds in Relation to the Implementation Plan for Use of Hurricane Floyd Relief Funds - House Bill 2 (Extra Session 1999). 

The intended effective date of the temporary rules is February 1, 2000. The rules will affect the following: 

Citation to Rules: I5ANCAC IC .0500 

Legislative and Intergovernmental Affairs - Comments are welcomed and may be submitted to Ms. Melba McGee, DENR, 
Division of Legislative and Intergovernmental Affairs, 1601 Mail Service Center, Raleigh, NC, 27699-1601, (919) 715-4194. 

The Hunicanc Floyd Recovery Act applies to activities that are funded with public monies from the Hurricane Floyd Reserve Fund 
and that are taken in response to the damage wrought by the hurricanes which occurred in North Carolina in September and October 
of 1999. The Department will streamline the breadth and scope of its existing SEPA rules to expedite review of activities funded from 
the Fund. 

Division of Marine Fisheries - Comments are welcomed and may be submitted to Juanita Gaskill, DENR, Division of Marine 
Fisheries, PO Box 769, Morehead City, NC 28557. 

Grants to Commercial Fishermen for Damages Caused by Hurricanes 

To establish the application procedures, eligible requirements, and process for disbursement of funds to commercial 
Ifishermen for loss of income or for damages or loss of equipment. 

JDivision of Waste Management - Comments are welcomed and may be submitted Mr. Bill Meyer, Director, DENR, Division of 

|waste Management, 1646 Mail Service Center, Raleigh, NC 27699, (919) 7,^.V0692, ext. 202. 

lazardous Waste Section: 

Rules will establish criteria for prioritizing hazardous waste for assessment and follow-up. 

(1) A portion of the funds will be used for conducting assessments, including the collection of environmental samples 
and their analysis, at 35 known or potentially tlood-affected sites with hazardous substance contamination threats. 

* Assessment work will be a priority. 
Those sites where imminent and substantial threats exist will then be addressed. 

(2) A portion of the funds will also be used for reconnaissance, evaluation, and emergency mitigation of old closed 
landfills in the affected counties. 

* Site location and reconnaissance will be the first priority. 
Imminent and substantial threats will be abated as discovered. 

(3) The Department may use existing contracts or may initiate new contracts to conduct this work. 

(4) At those sites where responsible parties exist, the Department may require that those responsible parties conduct 
the above described work. 

Solid Waste Sites and Junkyards Section: 

Establish criteria for remediating high risk solid waste sites and junkyards in the 100 

year flood plains in areas affected by Hurricane Floyd. Some of the factors to be considered will be: 

- Voluntary participation by local governments to accept conservation easement on sites. 
Voluntary participation by owners and operators of sites for assessment and remediation. 
Limited to sites located, all or in part, in 100 year flood plains. 
Priority will be determined by a combination of site size and toxicity of potential or actual releases to waters of the state. 



\14:14 NORTH CAROLINA REGISTER January 14, 2000 1218 



IN ADDITION 



- Sites may be excluded due to certain types of contamination such as PCB's or dioxin or similar chemicals. 

- Distance from public water supply sources. 

- Availability of remediation funds contingent on transfer of conservation easement to local governments for at least that portion of 
sites in 100 year tlood plain that would prohibit future use of the site for solid waste or junk auto management. I 

- Voluntary binding agreement from site owners and operators to prevent future releases to the environment. 

- Potential for construction or mitigation of on-site wetlands. 

- Priority will be given to counties that sustained severe damage as determined by FEMA. 

UST Section: 

I. Title of Program - Petroleum Underground Storage Tank Release Assessment and Corrective Action Program 

n. Summary of program. This program is designed to survey each of 1 12 UST facilities where flood damage has been 

confirmed and conduct assessment and remediation of contaminated soil and groundwater where required. It is expected 
that some assessment and remediation activities will also be conducted at other sites such as residences and farms where 
UST releases have occurred but have not yet been reported. 

m. Plan for implementation: 

Except for initial file reviews by Regional Office staff and project management by UST Section Trust Fund Branch 
hydrogeologists (2) and engineer { 1 ), an estimated 90% of the work necessary to implement this program will be performed 
by four existing State Trust Fund environmental consultants. These consultants have previously been selected for use by 
Central Office staff in conducting assessment and remediation work at other UST sites where the responsible party could 
not be located or failed to proceed with assessment and cleanup activities. There is a possibility that some of the facilities 
will opt to perform this work with their own consultants and request reimbursement. Responsible party work will require 
pre-approval by the UST Section in order to track costs. 

The following steps will be taken to implement this program: | 

A. Obtain access agreements from UST owners/operators/landowners. Perform precision tank tightness tests, 
precision line tightness tests and corrosion protection checks. All of these tests may not be necessary depending 
on whether ( 1 ) the facilities have the capability to conduct some testing using existing equipment, and (2) there is 
conclusive evidence of releases already identified. Sample all on-site and adjacent water supply wells to ensure 
water supplies do not contain elevated levels of petroleum products. Provide bottled water to the users whose water 
supplies contain elevated levels of petroleum products. 

B. Analyze data from tank and line testing and perform Limited Site Assessments (LSA) to determine the impact to 
soil and groundwater and accurately characterize the potential health and environmental risks from the UST 
releases. Prioritize sites based on above information and the attached priority ranking system. (This step will 
include any residential and farm USTs identified to have had a release that might pose a significant threat to health 
and the environment). Once LSA a are complete, the remaining money will be obligated for sites based on the risk 
to health and the environment. 

C. Perform Comprehensive Site Assessments (CSA), based upon the priority ranking system, to determine the extern 
of the release both vertically and horizontally in the soil and groundwater for those sites where the LSA has 
indicated an intermediate or high risk to health and the environment. In addition, the CSA will characterize the 
release, predict impacts to potential receptors such as water supply wells and supply the needed information for 
selection and design of treatment systems. (This step will also include any residential and farm USTs identified 
to have had a release that poses a significant threat to health and the environment). 

D. Begin soil and groundwater remediation activities based upon the priority ranking system. (As in Step C, this will 
also include any residential and farm USTs identified to have had a release that poses a significant threat to health 
and the environment). 

Once LSA's are complete, the remaining money will be obligated for sites based on the risk to health and the environment. 



1219 NORTH CAROLINA REGISTER January 14, 2000 14:14 



IN ADDITION 



IV. 



Timeline for implementation: 



Activity 


Start Date 


End Date 


Est. Cost 


Review facility data 


1/10/2000 


2/1/2000 


N/A 


Begin tightness testing. 








corrosion checks, and 








provide bottled water 


2/1/2000 


2/29/2000 


$ 448,000 


Perform LSAs 


3/1/2000 


4/15/2000 


$2,193,000 


Perform CSAs 


4/15/2000 


5/30/2000 


$1,750,000 


Begin soil & groundwater 








remediation 


6/1/2000- 




$ 609,000 


TOTAL 






$5,000,000 



Requirement for temporary rules - unknown. 

Impact on other programs - None anticipated. 

Budget for the program - existing contracts will be utilized. The account number for these expenditures will be 536989 
(Fund 2725). In the event that some of the facilities conduct the work themselves, the account number will be 535900 (Fund 
2725). There are no plans for temporary staffing, contracting for services by the State, additional space requirements, 
computer programming, etc. 

Management decisions/guidance required. 

(A) For some of the 1 12 sites identified, further cleanup activity will be required into the future. The UST Section 
believes that in order to make this program beneficial to those individuals that have suffered losses as a result of 
the flooding. State Trust Fund reimbursement deductibles should be waived for any future assessment and 
remediation activities required beyond the $5 million dollars allocated for this program. This would require a 
statutory change. This requirement would not be applicable to those sites that had discovered releases prior to the 
flood and those not in compliance with UST upgrade requirements (spill, overfill and corrosion protection) at the 
time of the flood event. 

(B) If a release from a UST system was identified prior to the flood, these funds will only be available to perform 
integrity and calhodic testing and not assessment and remediation. 



IX. 



Information to be collected for reporting to the General Assembly. 



(A) Access Agreements 

Monthly reporting elements: 



# of facilities that allow access 

# of facilities that do not allow access 

# of facilities opting to conduct work with non-state-contracted consultants 

# of facilities remaining 



(B) Tank Tightness Tests and/or Visual Inspections for 112 UST Facilities 
Monthly reporting elements: # of facilities tested and costs incurred for tests 

# of facilities yet to be tested and projected costs 

# of facilities with failures (i.e., suspected releases) requiring LSA-Phase I's 
and projected costs 

(C) LSA Phase I's for Sites with Suspected Releases 

Monthly reporting elements: # of LSA Phase I's completed and costs incurred 

# of LSA Phase I's yet to be done and projected costs 

# of LSA Phase II's pre)jected and projected costs 



(D) 



LSA Phase II's for Sites with Confirmed Contamination 



NORTH CAROLINA REGISTER 



January 14, 2000 



1220 



IN ADDITION 



Monthly reporting elements: 



(E) Water Supplies 

Monthly reporting elements; 



# of LSA Phase II's completed and costs incurred 

# of LSA Phase II's projected and projected costs 

# of High, Intermediate and Low priority sites 

# of CSA's projected and projected costs { 

# of CAP'S (remediation) projected and projected costs 

# of households with petroleum impacted wells 

# of households provided with bottled water or point of entry systems 

# of households connected to municipal water supplies 

# of households protected from petroleum contamination by controlling the 
spread of contamination through remediation of soil and groundwater 



( 



1221 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



IN ADDITION 



• 



U.S. Department of Justiee 
Civil Rights Division 



JDR:DHH:TGL:jdh:bab Voting Section 

DJ 166-012-3 PO. Box 66128 

1999-3260 Washington. D.C. 20035-6128 



December 10, 1999 



George A. Weaver, Esq. 

113 East Nash Street, Suite 404 

Wilson, NC 27893 



Dear Mr. Weaver: 



' 



This refers to the trial use of the Micro Vote Infinity voting machine (Sarasota Precinct) for Wilson County, North Carolina, 
submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission 
on October 18, 1999. 

The Attorney General does not interpose any objection to the specified change. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. 
See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 



Sincerely, 



Joseph D. Rich 
Acting Chief 
Voting Section 



I 



14:14 NORTH CAROLINA REGISTER January 14, 2000 1222 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency 's proposed rule making. The agencx must 
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. 
Publication of a temporary rule sen'es as a Notice of Rule-making Proceedings and can be found in the Register under the 
section heading of Temporary Rules. A Rule-making Agenda published by an agency sen'es as Rule-making Proceedings and 
can be found in the Register under the section heading of Rule-making Agendas. Statutoiy reference: G.S. 150B-21 .2. 



<' 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

CHAPTER 52 - VETERINARY DIVISION 

-K jotice of Rule-making Proceedings is hereby given by the 
iy North Carolina Board of Agriculture in accordance with 
G.S. 150B-2L2. The agency shall subsequently publish in the 
Register the text of the rules it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 2 

NCAC 52B .0201 - Other rules may be proposed in the course 
of the rule-making process. 

Authority for the rule-making: G.S. 106-307.4: 106-307.5: 
106-317; 106-348; 106-540 

Statement of the Subject Matter: This rule establishes 
requirements for the movement of cmimals which are infected 
with or exposed to a contagious or infectious disease. The 
proposed change would require cleaning and disinfecting of 
vehicles used to transport. 

Reason for Proposed Action: The State Veterinarian 
recommends this proposed change in order to prevent the 
spread of animal diseases. 

Comment Procedures: Written comments may be submitted to 
David S. McLeod, Secretary. North Carolina Board of 
Agriculture. PO Box 27647. Raleigh. NC 27611. 



TITLE 19A - DEPARTMENT OF TRANSPORTATION 
CHAPTER 3 - DIVISION OF MOTOR VEHICLES 

-K TOtice of Rule-making Proceedings is hereby given by the 

1 V Division of Motor Vehicles in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the 
Register the text of the rules it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

19A NCAC 3D .0802 - Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 20-2; 20-381 

Statement of the Subject Matter: Rule sets conditions for 
transporting hazardous materials by for-hire carriers. 



Reason for Proposed Action: Rule is proposed for amendment 
to correct Code of Federal Regulations citations and to add 
more explicit terminology to the existing rule. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rule by mailing the comments 
to Emily Lee. NC DOT. PO Box 25201. Raleigh. NC 27611 by 
April J. 2000. 



HI 






1223 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice 
of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication 
date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days 
for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutoiy reference: G.S. I50B- 
21.2. 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the DHHS Controller's Office intends to amend the 
rules cited as lONCAC IB .0501 -.0502. Notice of Ride-making 
Proceedings was published in the Register on October 1, 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted from 3:00 p.m. -5:00 p.m. 
on Februaiy 3. 2000 at 616 Oberlin Road. Room 152. Raleigh. 
NC. 

Reason for Proposed Action: To adopt as permanent rules the 
temporary version of the rules for the 1999 Rate Setting Method 
and cost reporting for family care homes. 



I Comment Procedures: Anyone wishing to comment on these 
proposed rules should contact Joyce Johnson, DHHS 
Controller's Office. 2019 Mad Sen-ice Center. Raleigh. NC 
27699-2019. (919) 733-0169. 

Fiscal Impact 
State Local Sub. None 
/ 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER lA - IDENTIFYING INFORMATION 

SECTION .0500 - REIMBURSEMENT 

0501 RATE SETTING METHODS FOR FACILITIES 
THAT SERVE STATE/COUNTY SPECIAL 
ASSISTANCE RESIDENTS 

(a) A rate for facilities which serve State/County Special 
Assistance residents shall be reviewed annually, and pending 
approval of the Legislature, shall be effective for dates of service 
or a 12 month period beginning each October 1. Except for 
Family Care Homes, rates Rates are derived from submission of 



cost reports for the most recent 1 2 month period. The maximum 
rate shall be developed by ranking prior year per diem cost from 
the lowest to the highest in two separate arrays, one for direct 
cost and one for indirect cost. The per diem cost at the IS^c 

I percentile shall be used for the direct rate and the 60% peicentilc 
shall be used for the indirect rate. The maximum rate 
determined by this method may be adjusted as necessary to 



comply with federal or state laws or policies. 

(b) The rate calculated in Paragraph (a) of this Rule shall 
include an annual adjustment to reflect increases or decreases in 
prices that are expected to occur from the cost report period on 
which the rates are developed to the year in which the rate 
applies. The price level adjustment factors shall be computed 
using aggregate base year cost in the following manner: 

(1) Cost shall be accumulated into the following groups: 

(A) labor, 

(B) fixed, 

(C) other. 

(2) The relative weight of each cost group shall be 
calculated to the second decimal point by dividing the 
total cost of each group (labor, fixed, and other) by 
the total cost. 

(3) Price adjustment factors for each cost group shall be 
established as follows: 

(A) Labor. The percentage change for labor costs 
shall be based on the projected average hourly 
wage of North Carolina service workers as 
provided by the North Carolina Office of State 
Budget and Management. 

(B) Fixed. No adjustment shall be made for this 
category, thus making the factor zero. 

(C) Other. The expected annual change in the 
implicit price deflator for the Gross National 
Product as provided by the OSBM. 

(D) The weights computed in Subparagraph (b) (2) 
of this Rule shall be multiplied by the 
percentage change computed in Parts (b) (}) 
(A), (B) and (C) of this Rule. 

The sum computed for each category in Part (b) (.3) 
(D) of this Rule shall be the price level adjustment 
factor for the coming fiscal year. 
(c) Rates for family care homes shall be based on market rate 
data . The market rate for family care homes shall be the 
statewide rate established for adult care home in accordance 
with Paragraphs (a) and {b} o[ this Rule. 

Authority G.S. I43B-10: S.L. 1999-334. 

.0502 COST REPORTING: FOR FACILITIES THAT 
SERVE STATE/COUNTY SPECIAL 
ASSISTANCE RESIDENTS 

(a) Except for family care homes, each Each facility which 
serves State/County Special Assistance residents shall prepare 
and submit a report of its costs and other financial information. 
Facilities shall prepare and submit the cost report on the fiscal 
year as defined in G.S. L31D-4.2. Facilities that fail to file their 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1224 



PROPOSED RULES 



cost reports by the due date are subject to enforcement actions 
for non-compliance as defined in G.S. 131D-4.2. If the 
Department of Health and Human Services (DHHS) finds good 
cause for delay, it may extend the deadline for filing the report 
for up to an additional 30 days. A good cause is an action that 
is uncontrollable by the provider. 

(b) The cost report shall be submitted on forms provided by 
the Office of the DHHS Controller. The Department of Health 
and Human Services shall make the cost report format available 
to each facility on or before the last day of the fiscal year report 
period. 

Authorin- G.S. I4.m-I0: S.L 1999-334. 



TITLE 11 - DEPARTMENT OF INSURANCE 



Department's Property and Casualty Division: 

( 1 ) Any form or endorsement not previously filed with 
the Department and approved for use. 

(2) A statement explaining why a manuscript orl 
individual risk policy was needed. 

(?r) Tlie a p p r op ri ate filing fee. 

(b) Continuous policies are not permitted. 

(c) A copy of the approved filing shall be retained by the filer 
in accordance with 1 1 NCAC 19 .0002 through 1 1 NCAC 19 



i) 



Teeefh 1 1 NCAC 1 9 .0102 through 1 1 NCAC 19 .0105. 

(d) If the rates have been determined by an unfiled "(a) 
rating" or "individual risk rating", the insurer shall submit the 
following: 

( 1 ) A statement describing how the rates were calculated. 

(2) A certification that the rates are not excessive, 
inadequate, or unfairly discriminatory. 



Notice is hereby given in accordance with G.S. 150B-21.2 
tliat the NC Department of Insurance intends to amend the 
rules cited asU NCAC 10 .0105. .1110. Notice of Ride-making 
Proceedings was published in the Register on November 15. 
1999. 

Proposed Effective Date: July 1, 2000 

A Public Hearing will be conducted at 10:00 a.m. on Januaiy 
31. 2000 at the Dobbs Building, f' Floor Hearing Room. 430 N. 
Salisbury Street. Raleigh. NC. 

Reason for Proposed Action: 

11 NCAC 10 .0105 - The 1999 NC General Assembly in S.L. 

1 999-435 repealed the policy form and rate filing fees that were 

contained in G.S. 58-6-5. This amendment conforms this rule to 

the repeal. 

II NCAC 10 .1110 - The 1999 NC General Assembly in S.L. 

1999-132 changed the elements of the formula used by workers' 

compensation insurers to arrive at their premium rates. This 

amendment conforms the rule to the new statute. 

Comment Procedures: Written comments may be sent to Ellen 
K. Sprenkel. NC Department of Insurance, PO Bo.x 26387, 
Raleigh. NC 27611. 



Fiscal Impact 
State Local 



CHAPTER 10 



Sub. 



None 



PROPERTY AND CASUALTY 
DIVISION 



SECTION .0100 - GENERAL PROVISIONS 

.0105 MANUSCRIPT OR INDIVIDUAL RISK 
FILINGS 

(a) Within 60 days after the inception date of a manuscript or 
individual risk policy, the insurer shall submit to the 



Authority G.S. 58-2-40; 58-6-5: 58-41-50: 58-43-5. 

.1110 WORKERS' COMPENSATION LOSS COSTS 
QUESTIONNAIRE 

For those filings made in accordance with 11 NCAC 10 
. 1 102( 15), supporting information shall be presented as follows: 

(1 ) Reference Filing Adoption Form: 

(a) Insurer's name. 

(b) Contact person for filing. 

(c) Title of contact person. 

(d) Phone number. 

(e) Insurer's FEIN. 

(f) Insurer's file number. 

(g) Department file number. 

(h) NCRB reference filing number. 

(i) Effective date. 

(j) Insurer's proposed effective date (if different 

from NCRB effective date), 
(k) Insurer's approximate market share of North 

Carolina written premium. 
(1) Whether the multiplier is applicable to this 
filing only or to subsequent reference filings, 
(m) Statement of accuracy of information, 
(n) Signature of company official, 
(o) Date signed. 

(2) Summary of Supporting Data Form: 

(a) Statement of whether the filing applies 
uniformly to all workers'compensation classes. 

(b) Loss costs modification: 

(i) Without modification (factor equals 

1 .000). 
(ii) With modification (supporting 
documentation required). 

(c) Loss costs modification factor. 

(d) Selected expenses (attach Expense Provision 
Exhibit): 

(i) Commission and brokerage, 
(ii) Other acquisition, 
(iii) General expenses. 



(] 



1225 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



PROPOSED RULES 



(3) 



(iv) 

(V) 

(vi) 
(vii) 



fees, loss based 



credit for 



Taxes, licenses, 

assessments. 

Profit, contingencies, 

investment income. 

Other. 

Total (i+ii+iii+iv+v+vi). 

Development of Expected Loss and Loss 

Adjustment Expense (Target Cost) Ratio: 

Expressed in decimal form: 1.000-(d)(vii). 

Overall effect of expense constant and 

minimum premiums: Expressed in decimal 

form, i.e.. \.2% overall effect would be 0.988. 

Overall effect of size-of-risk discounts plus 

expense gradation recognition in retrospective 

rating: Expressed in decimal form, i.e., 8.6% 

average discount would be 0.914. 

Provision for premium taxes, licenses, fees, 

and loss based assessments: See NCRB 

Reference Filing, Exhibit IL 

Company formula loss costs multiplier (b)(ii) 

x( 1.000 -h)/ [(g) -(d)(vii)]x(f). 

Company selected loss costs multiplier. 

Explain any differences between (i) and (j). 

Rate level changes for the coverages to which 

this page applies. 

Statement of whether the insurer is amending 

the minimum premium formula. 

Statement of whether the insurer is amending 

the expense constant(s). 

Statement of whether the insurer is changing 

the premium discount schedules. 

If the answer to (1), (m), or (n) is yes, 

documentation is required. 
Expense Provisions Exhibit: For the following items, 
the insurer shall provide the three most recent years, 
the average, industry average, and the selected: 
(a) Commissions and brokerage. 

Other acquisition. 

General expenses. 

Taxes, licenses, fees, and loss based 

assessments. 

Profit, contingencies, and investment income: 
(i) Profit and contingencies. 

(ii) Credit for investment income. 

Other. 

Total (a+b+c+d+e+f). 
insurer shall indicate if the insurers actual 
expense ratios are North Carolina, countrywide, or 
other (explain); and if the insurers actual expense 
ratios are a percent of standard premium, percent of 
net premium, or other (explain). The insurer shall 
explain if the selected provisions differ from the 
average for reasons other than rounding. 



Aurhoritx G.S. 58-2-40: 58-36-15: 58-36-100. 



^^^:|::!;:J:^:j:;E;;i;^;:j;:!;^;j:^;iJ^:J::}; 



(e) 
(f) 
(g) 

(h) 

(i) 

0) 
(k) 
(1) 
(m) 
(n) 
(o) 



(b) 
(c) 
(d) 

(e) 



(0 

(g) 
The 



Notice is hereby given in accordance with G.S. 150B-21 .2 
that the NC Department of Insurance intends to adopt the 
rides cited as II NCAC II F .0501 -.0504 and amend the rules 
cited as I IF .0401 -.0405. Notice of Rule-making Proceedings 
was published in the Register on November 15, 1999. 

Proposed Effective Date: November 15, 1999 

A Public Hearing will be conducted at 10:00 a.m. on January- 
Si, 2000 at the Dobhs Building, 3"' Floor Hearing Room, 430 N. 
Salisbuiy Street, Raleigh, NC. 

Reason for Proposed Action: 

II NCAC 1 IF. 0401:0405 -The 1999 NC General Assembly in 

S.L. 1999-219 authorized the Commissioner of Insurance to 

adopt rules governing minimum valuation standards for 

reserves of life insurance companies n-hich required these rules 

to be amended. 

II NCAC IIF .0501:0504 - The 1999 NC General Assembly in 

S.L. 1999-219 authorized the Commissioner of Insurance to 

adopt rules to recognize new annuity mortality tables for 

determining reserve liabilities for anrudties before Jarurary I, 

2000. 

Comment Procedures: Wr-itten comments may be sent to 
Walter James, NC Department of Insur-ance, PO Bo.x 26387, 
Raleigh, NC 2761 1. 



Fiscal Impact 
State Local 



Sub. 



None 



CHAPTER 11 - FINANCIAL EVALUATION DIVISION 

SUBCHAPTER IIF - ACTUARIAL 

SECTION .0400 - COMMISSIONER'S RESERVE 
VALUATION METHOD 

.0401 APPLICABILITY 

(a) This Section does not apply to: 

( 1 ) Any individual life insurance policy issued on or after 
the effective date of this Section if the policy is issued 
in accordance with and as a result of the exercise of a 
reentry provision contained in the original life 
insurance policy of the same or greater face amount, 
issued before the effective date of this Section, that 
guarantees the premium rates of the new policy; nor 
to subsequent policies issued as a result of the 
exercise of such a provision, or a derivation of the 
provision, in the new policy. 

(2) Anv universal life policy that meets all the following 
requirements: 

(A) The secondary guarantee period, if any, is five 
years or less. 

(B) The specified premium for the secondary 



14:14 



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January 14, 2000 



1226 



PROPOSED RULES 



(C] 



guarantee period is not less than the net level 
reserve premium for the secondary guarantee 
period based on the CSO valuation tables as 
defined in JJ NCAC IIF .0402(6) and the 
applicable valuation interest rate. 
The initial surrender charge is not less than 
1 007r of' the first year annualized specified 



premium for the secondary guarantee period. 

(2) £3} Any variable life insurance policy that provides for 
life insurance, the amount or duration of which varies 
according to the investment experience of any 
separate account or accounts. 

tfHH] Any variable universal life insurance policy that 
provides for life insurance, the amount or duration of 
which varies according to the investment experience 
of any separate account or accounts. 

(4) {5} €iTotn7 A group life insurance ce r tificates certificate 
unless the ce r tificates pr ovide certificate provides for 
a stated or implied schedule of maximum gross 
premiums required in order to continue coverage in 
force for a period in excess of one year. 

(b) Calculation of the minimum valuation standard for 
policies with guaranteed nonlevel gross premiums or guaranteed 
nonlevel benefits (other than universal life policies), or both, 
shall be in accordance with 1 1 NCAC 1 IF .0404. 

(c) Calculation of the minimum valuation standard for 
fiexible premium and fixed premium universal life insurance 
policies that contain provisions resulting in the ability of a 
policyholder to keep a policy in force over a secondary 
guarantee period of mo r e tha n five yea r s shall be in accordance 
with II NCAC IIP. 0405. 

(d) Tliis Section becomes effect i ve on Ja n ua r y 1 of th e 
calenda r yea r i mmediately follow i ng the adoption of similar 
r equi r eme n ts in rule o r statuto r y fo r m by states with an 
agg r egate population of at least fifty-one pe r cent (51%) of the 
total population of the United States of America, acco r ding to 
the most r ece n t Gene r al Fede r al C e nsus . 

Aiahontx G.S. 58-2-40: 58-58-50(d): 58-58-50(k). 

.0402 DEFINITIONS 

As used in this Section: (3) 

(1) "Basic reserves" means reserves calculated in 
accordance with the p rin c ip les of G.S. 58-58-50(d). 

( 2 ) "Contract segmentation method" means the method of 
dividing the period from issue to mandatory £4] 
expiration of a policy into successive segments, with 

the length of each segment being defined as the period 

from the end of the prior segment (from policy (4) (5) 

inception, for the first segment) to the end of the latest 

policy year as determined below . All calculations are 

made using the 1 980 CSO valuation tables, as defined 

in 11 NCAC 1 IF. 0402 (5) JJ. NCAC IIF .0402(6) 

(or any other valuation mortality table adopted by the (5) {6J 

NAIC after the effective date of this Section and 

adopted as a rule by the Commissioner for this 



purpose), and, if elected, the optional minimum 
mortality standard for deficiency reserves stipulated 
in 11 NCAC 11 F. 0403(b). 
The length of a particular contract segment shall be 
set equal to the minimum of the value t for which Gt 
is greater than Rt (if Gt never exceeds Rt the segment 
length is deemed to be the number of years from the 
beginning of the segment to the mandatory expiration 
date of the policy), where Gt and Rt are defined as 
follows: 

Gl= GPx+k+t 



GPx+k+t-l 
where: 

X = original issue age; 

k = the number of years from the date of issue 
to the beginning of the segment; 

t = 1, 2, . . .; t is reset to 1 at the beginning of 
each segment; 
GPx+k+t-1 = Guaranteed gross premium per 
thousand of face amount amount, for year t of the 
segment, ignoring policy fees only if level for the 
premium paying period of the policy, p olicy, for yea r 
t of the segment. 

Rt= qx+k+t 



qx+k+t-l 
However, Rt may be increased or decreased by one 
percent in any policy year, at the company's option 
but Rt shall not be less than one; 
where: 

X, k and t are as defined above, and 
qx+k+t-l = valuation mortality rate for deficiency 
reserves in policy year k+t k+t, but using the 
mortality of 1 1 NCAC 1 IF .0403(b)(2) if 1 1 NCAC 
1 IF .0403(b)(3) is elected for deficiency reserves. 
However, if GPx+k+t is greater than zero (0) and 
GPx+k+t- 1 is equal to zero (0). Gt shall he deemed to 
be one thousand (1.000). If GPx+k+t and GPx+k+t- 1 



i) 



are both equal to zero (0), Gt shall be deemed to be 

zero (0). 

"Deficiency reserves" means the excess, if greater 

than zero, of minimum reserves calculated in 

accordance with the pr inc ip les of G.S. 58-58-50(g) 

over basic reserves. 

"Guaranteed gross premiums" means the premiums 

under a policy of life insurance that are guaranteed 

and determined at issue. 

"Maximum valuation interest rate" rates" means the 

interest rate rates specified in G.S. 58-58-50(c)(4) 

G. S. 58-58-50(c)(4)(b) that is are to be used in 

determining the minimum standard for the valuation 

of life insurance policies. 

"1980 CSO valuation tables" means thei 

Commissioners' 1980 Standard Ordinary Mortality" 

Table (1980 CSO Table) without ten-year selection 



7227 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 m 



PROPOSED RULES 



factors, incorporated into the 1 980 amendments to the 
NAIC Standard Valuation Law, and variatio n 
variations of the 1980 CSO Table approved by the 
NAIC, such as the smoicer and nonsmoker versions 
approved in December 1983. 
(frl (2) "Scheduled gross premium" means the smallest 
illustrated gross premium at issue for other than 
universal life insurance policies. For universal life 
insurance policies, scheduled gross premium means 
the smallest specified premium described in 1 1 
NCAC 1 IF .0405(a)(3), if any, or else the minimum 
premium described in 1 1 NCAC I IF .0405(a)(4). 
(T)(8} "Segmented reserves" means reserves, calculated 
using segments produced by the contract 
segmentation method, equal to the present value of all 
future guaranteed benefits less the present value of all 
future net premiums to the mandatory expiration of a 
policy, where the net premiums within each segment 
are a uniform percentage of the respective guaranteed 
gross premiums within the segment. 
(a) TTie uniform percentage for each segment is 
such that, at the beginning of the segment, the 
present value of the net premiums within the 
segment equals: 
(i) The present value of the death benefits 

within the segment, plus 
(ii) The present value of any unusual 
guaranteed cash value (see 1 1 NCAC 
1 IF .0404(d)) occurring at the end of 
the segment, less 
(iii) Any unusual guaranteed cash value 
occurring at the start of the segment, 
plus 
(iv) For the first segment only, the excess of 
the Item (i) over Item ( i i). Item (A) 
over Item (B), as follows: 

(A) A net level annual premium 
equal to the present value, at the 
date of issue, of the benefits 
provided for in the first segment 
after the first policy year, divided 
by the present value, at the date 
of issue, of an annuity of one per 
year payable on the first and each 
subsequent anniversary within 
the first segment on which a 
premium falls due. However, the 
net level annual premium shall 
not exceed the net level annual 
premium on the nineteen-year 
premium whole life plan of 
insurance of the same renewal 
year equivalent level amount at 
an age one year higher than the 
age at issue of the policy. 

( B ) A net one-year term premium for 
the benefits provided for in the 



first policy year. 

(b) The length of each segment is determined by 
the contract segmentation method. 

(c) The interest rates used in the present value 
calculations for any policy may not exceed the 
maximum valuation interest rate, determined 
with a guarantee duration equal to the sum of 
the lengths of all segments of the policy. 

(d) For both basic reserves and deficiency reserves 
computed by the segmented method, present 
values mttst shall include future benefits and 
net premiums in the current segment and in all 
subsequent segments. 

iW) (9J "Tabular cost of insurance" means the net single 
premium at the beginning of a policy year for one- 
year term insurance in the amount of the guaranteed 
death benefit in that policy year. 
(9) (10) "Ten-year select mo r tality factors" means the select 
factors adopted with the 1980 amendments to the 
NAIC Standard Valuation Law. 
f+0) (II) "Unitary reserves" means the present value of all 
future guaranteed benefits less the present value of all 
future modified net premiums, where: 

(a) Guaranteed benefits and modified net 
premiums are considered to the mandatory 
expiration of the policy; 

(b) Modified net premiums are a uniform 
percentage of the respective guaranteed gross 
premiums, where the uniform percentage is 
such that, at issue, the present value of the net 
premiums equals the present value of all death 
benefits and pure endowments, plus the excess 
of Item (i) over Item (ii), as follows: 

(i) A net level annual premium equal to the 
present value, at the date of issue, of the 
benefits provided for after the first 
policy year, divided by the present 
value, at the date of issue, of an annuity 
of one per year payable on the first and 
each subsequent anniversary of the 
policy on which a premium falls due. 
However, the net level annual premium 
shall not exceed the net level annual 
premium on the nineteen-year premium 
whole life plan of insurance of the same 
renewal year equivalent level amount at 
an age one year higher than the age at 
issue of the policy, 
(ii) A net one-year term premium for the 
benefits provided for in the first policy 
year; and 

(c) The interest rates used in the present value 
calculations for any policy may not exceed the 
maximum valuation interest rate, determined 
with a guarantee duration equal to the length 
from issue to the mandatory expiration of the 
policy. 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1228 



PROPOSED RULES 



H+) (12) "Universal life insurance policy" means any 
individual life insurance policy under the provisions 
of which separately identified interest credits (other 
than in connection with dividend accumulations, 
premium deposit funds, or other supplementary 
accounts) and mortality or expense charges are made 
to the policy. 

Authorit}' G.S. 58-2-40: 58-58-50(d): 58-58-50(k). 

.0403 BASIC AND PREMIUM DEFICIENCY 
RESERVES 

(a) At the election of the company for any one or more 
specified plans of life insurance, the minimum mortality 
standard for hasic reserves may be calculated using the 1980 
CSO valuation tables with select mortality factors (or any other 
valuation mortality table adopted by the NAIC after the effective 
date of this Section and adopted as a rule by the Commissioner 
for this purpose). If select mortality factors are elected, they may 
be: 

( 1 ) The ten-year select mortality factors incorporated into 
the 1980 amendments to the NAIC Standard 
Valuation Law; 

(2) One hundred fifty pe r cent (150 ' /'? ) of the base The 
select mortality factors of in the NAIC Model 
Regulation entitled "Valuation of Life Insurance 
Policies Model Regulation"; or 

(5) One hundred fifty percent (15076) of the base select 
mo r tality factors of the NAIC Model Regulation 
entitled "Valuation of Life Insurance Policies Model 
Regulation" for the first 10 policy yea r s; then li n early 
g r aded from the resulting tenth year factor to 10 
percent at policy year 16; o r 
t4) (3] Any other table of select mortality factors adopted by 
the NAIC after the effective date of this Section and 
adopted as a rule by the Commissioner for the 
purpose of calculating basic reserves. 

(b) Deficiency reserves, if any, are calculated for each policy 
as the excess, if greater than zero, of the quantity A over the 
basic reserve. The quantity A is obtained by recalculating the 
basic reserve for the policy using guaranteed gross premiums 
instead of net premiums when the guaranteed gross premiums 
are less than the corresponding net premiums. At the election of 
the company for any one or more specified plans of insurance, 
the quantity A and the corresponding net premiums used in the 
determination of quantity A may be based upon the 1980 CSO 
valuation tables with select mortality factors (or any other 
valuation mortality table adopted by the NAIC after the effective 
date of this Section and adopted as a rule by the Commissioner). 
If select mortality factors are elected, they may be: be any of the 
following: 

( 1 ) The ten-year select mortality factors incorporated into 
the 1980 amendments to the NAIC Standard 
Valuation Law; 

(2) One hund r ed twenty p e r cent (120%) of the ba s e The 
select mortality factors of in the NAIC Model 



Regulation entitled "Valuation of Life Insurance 
Policies Model Regulation" 
(3) O n e hund r ed twenty p ercent ( 1 20'}?0 of For durations ^ 
in the first segment. X percent of the base select 
mortality factors of in the NAIC Model Regulation' 
entitled "Valuation of Life Insurance Policies Model 
Regulation" for the first 10 policy years; then linearly 
graded from the resulting tenth year facto r to 100 
p e r cent at p olicy year 16; or Regulation," subject to 
the following: 

(A) X may vary by policy year, policy form, 
underwriting classification, issue age, or any 
other policy factor expected to affect mortality 
experience; 

(B) X shall not be less than twenty percent (20%); 

(C) X shall not decrease in any successive policy 
years; 

(D) X is such that, when using the valuation 
interest rate used for basic reserves. Item (i) is 
greater than or equal to Item (ii): 

(i) The actuarial present value of future 
death benefits calculated using the 
mortality rates resulting from the 
application of X; 

(ii) The actuarial present value of future 
death benefits calculated using 
anticipated mortality experience without 
recognition of mortality improvement 
beyond the valuation date 

(E) X is such that the mortality rates resulting from 
the application of X are at least as great as the 
anticipated mortality experience, without 
recognition of mortality improvement beyond 
the valuation date, in each of the first five years 
after the valuation date; 

in 

(G) 



i\ 



The appointed actuary shall increase X at any 
valuation date where it is necessary to continue 
to meet all requirements of' this Rule; 
The appointed actuary may decrease X at any 
valuation date as long as X does not decrease 
in any successive policy years and as long as it 
continues to meet all the requirements of this 
Rule; and 
(H) The appointed actuary shall specifically take 
into account the adverse effect on expected 
mortality and lapsation of any anticipated or 
actual increase in gross premiums. 
(I) If X is less than one hundred percent (100%) at 
any duration for any policy, the following 
requirements shall be met: 
ill The appointed actuary shall annually 
prepare an actuarial opinion and 
memorandum for the company in 
conformance with the requiremen ts of J 
1 1 NCAC 1 1 F .0300; and 
(ii) The appointed actuary shall annually 



1229 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



PROPOSED RULES 



opine for all policies subject to this 

Section as to whether the mortality rates 

resulting from the application of X meet 

the requirements of this Rule. This 

opinion shall he supported by an 

actuarial report, subject to appropriate 

Actuarial Standards of Practice 

promulgated by the Actuarial Standards 

Board of the American Academy of 

Actuaries. The X factors shall retlect 

anticipated future mortality, without 

recognition ol" mortality improvement 

beyond the valuation date, taking into 

account relevant emerging experience. 

(4) Any other table of select mortality factors adopted by 

the NAIC after the effective date of this Section and 

adopted as a rule by the Commissioner for the 

purpose of calculating deficiency reserves. 

ixl Notwithstanding Paragraphs (a) and ( b ) of this Rul e , if the 



length of the First segment as dete r mined by the contract 



segmentation method for the basic r ese r ves i s n ot g re at er than 5 



years (safe harbo r ), then for the length of tim e m e asu r ed from 



issue, fo r eithe r the unitary method or the cont r act segmentation 



nethod. g r oss premiums need n ot be substitut e d fo r net 



p r emiums even if the g r oss premiums a r e less than th e net 



premiums. For subsequent periods, gross premiums must be 



I substituted fo r n et pr emiums if the gross p r emiums are less than 
the corresponding net premiums. 
th 



td) Fo r a n y policies for which the company chooses to use 
h e "safe h arb o r ", the com p any shall demo n strate annually to the 



Commiss i one r , by submit t ing a statement of actua r ial opinion 



signed by the ap p ointed actuary, that the reserves held fo r all 



such policies are adequate. 

ft) In applying pe r centag e s to th e base select mortality 
Factors : 

iV) No r esult shall be r ounded; a n d 

t¥) Any r esult that exceeds 100 shall be set equal to 10 . 
(f) (c) This Rule applies to both basic reserves and deficiency 
reserves. Any set of base^select mortality factors may be used 
only for the first segment. However, if the first segment is less 
than 10 years, the appropriate 10-year select mortality facto r s 
actors, incorporated into the 1980 amendments to the NAIC 



Standard Valuation Law, may be used thereafter through the 



tenth policy year from the date of issue. 

tgi (d] In determining basic reserves or deficiency reserves, 
guaranteed gross premiums without policy fees may be used 



where the calculation involves the guaranteed gross premium, 
but only if the policy fee is a level dollar amount for after the 
entire p remium-paying period o f the policy, first policy year. In 
determining deficiency reserves, policy fees may be included in 
guaranteed gross premiums even if they are not included in the 



actual calculation of basic reserves. 

(e) Reserves for policies that have changes to guaranteed 
gross premiums, guaranteed benefits, guaranteed charges, or 



rs 



uaranteed credits that are unilaterally made by the insurer after 



of the change shall be the greatest of the following: 



issue and that are effective for more than one year after the date 



(1) Reserves calculated ignoring the guarantee. 

(2) Reserves assuming the guarantee was made at issue. 

(3) Reserves assuming that the policy was issued on the 
date of the guarantee. 

(f) The Commissioner may require that the insurer document 
the extent of the adequacy o[ reserves for specified blocks, 
including but not limited to policies issued before the effective 
date of this Section. This documentation may include a 
demonstration of the extent to which aggregation with other 
non-specified blocks of business is relied upon in the formation 
of the appointed actuary opinion pursuant to and consistent with 
the requirements of JJ. NCAC IIP .0300. 

Authority G.S. 58-2-40: 58-58-50(d): 58-58-50(k). 



.0404 CALCULATION OF 11 NCAC 11 .0401(b) 

(a) Basic reserves shall be calculated as the greater of the 
segmented reserves and the unitary reserves. Both the segmented 
reserves and the unitary reserves for any policy must shall use 
the same valuation mortality table and selection factors. At the 
option of the insurer, in calculating segmented reserves and net 
premiums, either of the following adjustments may be made: 

( 1 ) Treat the unitary reserve, if greater than zero, 
applicable at the end of each segment as a pure 
endowment; and subtract the unitary reserve, if 
greater than zero, applicable at the beginning of each 
segment from the present value of guaranteed life 
insurance and endowment benefits for each segment. 

(2) Treat the guaranteed cash surrender value, if greater 
than zero, applicable at the end of each segment as a 
pure endowment; and subtract the guaranteed cash 
surrender value, if greater than zero, applicable at the 
beginning of each segment from the present value of 
guaranteed life insurance and endowment benefits for 
each segment. 

(b) Deficiency Reserves 

(1) The deficiency reserve at any duration shall be 
calculated: 

(A) On a unitary basis if the corresponding basic 
reserve determined by 1 1 NCAC 1 IF .()404(a) 
is unitary; 

(B) On a segmented basis if the corresponding 
basic reserve determined by 1 1 NCAC I IF 
.0404(a) is segmented; or 

(C) On the segmented basis if the corresponding 
basic reserve determined by II NCAC IIF 
.0404(a) is equal to both the segmented reserve 
and the unitary reserve. 

(2) This Pa r ag r aph 1 1 NCAC 1 1 F .0404(b) shall apply to 
any policy for which the guaranteed gross premium at 
any duration is less than the corresponding modified 
net premium calculated by the method used in 
determining the basic reserves, but using the 
minimum valuation standards of mortality (specified 
in 1 1 NCAC 1 IF .tJ403 (b)) and rate of interest. 

(3) Deficiency reserves, if any, shall be calculated for 
each policy as the excess if greater than zero, for the 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1230 



PROPOSED RULES 



(C) 



(A) 



(B) 



current and all remaining periods, of the quantity A 
over the basic reserve, where A is obtained as 
indicated in 1 1 NCAC 1 IF .04()3(b). 
(4) For deficiency reserves determined on a segmented 
basis, the quantity A is determined using segment 
lengths equal to those determined for segmented basic 
reserves. 

(c) Minimum Value - Basic reserves may not be less than the 
tabular cost of insurance for the balance of the policy year, if 
mean reserves are used. Basic reserves may not be less than the 
tabular cost of insurance for the balance of the current modal 
period or to the paid-to-date, if later, but not beyond the next 
policy anniversary, if mid-terminal reserves are used. The 
tabular cost of insurance must shall use the same valuation 
mortality table, select mo r tality facto r table and interest rates as 
thtrt those that are used for the calculation of both the segmented 
and the unitary reserves. However, if select mortality factors are 
used, they shall be the 10- year select factors incorporated into 
the 1980 amendments of the NAIC Standard Valuation Model (3) 
Law. In no case may total reserves (including basic reserves, 
deficiency reserves and any reserves held for supplemental 
benefits that would expire upon contract termination) be less 
than the amount that the policyowner would receive (including 
the cash surrender value of the supplemental benefits, if any, 
referred to above), exclusive of any deduction for policy loans, 
upon termination of the policy. 

(d) Unusual Pattern of Guaranteed Cash Surrender Values 

( 1 ) For any policy with an unusual pattern of guaranteed 
cash surrender values, the reserves actually held prior 
to the first unusual gua r a n tee guaranteed cash 
surrender value shall not be less than the reserves 
calculated by treating the first unusual guaranteed 
cash surrender value as a pure endowment and 
treating the policy as an n-year policy providing term 
insurance plus a pure endowment equal to the unusual 
cash surrender value, where n is the number of years 
from the date of issue to the date the unusual cash ( 1 ) 
surrender value is scheduled. 

(2) The reserves actually held subsequent to any unusual 
guaranteed cash surrender value shall not be less than (2) 
the reserves calculated by treating the policy as an n- 
year policy providing term insurance plus a pure 
endowment equal to the next unusual guaranteed cash (3) 
surrender value, and treating any unusual guaranteed 
cash surrender value at the end of the prior segment as 
a net single premium, where 

(A) n is the number of years from the date of the 
last unusual guaranteed cash surrender value (B) 
prior to the valuation date to the earlier of: 

(i) The date of the next unusual guaranteed 
cash surrender value, if any, that is 
scheduled after the valuation date; or (4) For 

(ii) The mandatory expiration date of the 
policy; and 

(B) The net premium for a given year during the n 
year period is equal to the product of the net to 



gross ratio and the respective gross premium; 
and 

The net to gross ratio is equal to Item (i) 

divided by Item (ii) as follows: 

(i) The present value, at the beginning of" 

the n-year period, of death benefits 

payable during the n-year period plus 

the present value, at the beginning of the 

n-year period, of the next unusual 

guaranteed cash surrender value, if any, 

minus the amount of the last unusual 

guaranteed cash surrender value, if any, 

scheduled at the beginning of the n-year 

period. 

(ii) The present value, at the beginning of 

the n-yearperiod, of the scheduled gross 

premiums payable during the n-year 

period. 

For the purposes of 1 1 NCAC I IF .0404(d) a policy 

is considered to have an unusual pattern of guaranteed 

cash surrender values if any future guaranteed cash 

surrender value exceeds the prior year's guaranteed 

cash surrender value by more than the sum of 



the 



(C) 



(e) 



One hundred ten percent (110%) of 
scheduled gross premium for that year; 
One hundred ten percent (1 10%) of one year's 
accrued interest on the sum of the prior year's 
guaranteed cash surrender value and the 
scheduled gross premium using th 
nonforfeiture interest rate used for calculating 
policy guaranteed cash surrender values; and 
Five percent (5%) of the first policy year 
surrender charge, if any. 
Optional Exemption for Yearly Renewable Term 
Reinsurance - At the option of the company, the following 
approach for reserves on YRT reinsurance may be used: 

Calculate the valuation net premium for each future 
policy year as the tabular cost of insurance for that 
future year. 

Basic reserves shall never be less than the tabular cost 
of insurance for the appropriate period, as defined in 
11 NCAC 1 IF. 0404(c). 
Deficiency reserves. 

(A) For each policy year, calculate the excess, if 
greater than zero, of the valuation net premium 
over the respective maximum guaranteed gross 
premium. 

Deficiency reserves shall never be less than the 

sum of the present values, at the date of 

valuation, of the excesses determined in 

accordance with Part (A) of this Subparagraph. 

purposes of 11 NCAC IIF .0404(e), the 

calculations use the maximum valuation interest rate 

and the 1980 CSO mortality tables with or without j 

ten-year select mortality factors, or any other tabled 

adopted after the effective date of this Section by the 



1) 



1231 



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January 14, 2000 



14:14 111 



PROPOSED RULES 



NAIC and adopted as a rule by the Commissioner for 
this purpose. 
(3) A reinsurance agreement shall be considered YRT 
reinsurance for purposes of this Rule if: if only the 
mortahty risiv is reinsured. 

(t^ The r einsu r a n ce pr emium rates (on iioth the 
initial — cu rr e n t — p remium — scale — artd — the 
gua r anteed maximum premium scale) fo r a n y 
g i v en — yea r a r e — independent — of both — tftc 
pr emium rates and the plan of the o r iginal 
p oli c y; and 
fB) Only the mortality r isk is reinsu r ed. 
(6) If the assuming company chooses this o ptional 
exemption, the ceding company 'sreinsurance reserve 
credit shall be limited to the amount of reserve held 
by the assuming company for the affected policies. 
(f) Optional Exemption for Attained- Age-Based Yearly 
Renewable Term Life Insurance Policies - At the option of the 
company, the following approach for reserves for attained-age- 
based YRT life insurance policies may be used: 

( 1 ) Calculate the valuation net premium for each future 
policy year as the tabular cost of insurance for that 
future year. 

(2) Basic reserves shall never be less than the tabular cost 
of insurance for the appropriate period, as defined in 
IINCAC llF.0404(c). 

(3) Deficiency reserves. 

(A) For each policy year, calculate the excess, if 
greater than zero, of the valuation net premium 
over the respective maximum guaranteed gross 
premium. 

(B) Deficiency reserves shall never be less than the 
sum of the present values, at the date of 
valuation, of the excesses determined in 
accordance with Part (A) of this Subparagraph. 

(4) For purposes ofthtyferie; 1 1 NCAC 1 IF. 0404(0. the 
calculations use the maximum valuation interest rate 
and the 1980 CSO valuation tables with or without 
10-year select mortality factors, or any other table 
adopted after the effective date of this Section by the 
NAIC and adopted as a rule by the Commissioner for 
this purpose. 

(5) A policy shall he considered an attained-age-based 
YRT life insurance policy for purposes of this Rule if: 

(A) TTie premium rates (on both the initial current 
premium scale and the guaranteed maximum 
premium scale) are based upon the attained age 
of the insured such that the rate for any given 
policy at a given attained age of the insured is 
independent of the year the policy was issued; 
and 

(B) The premium rates (on both the initial current 
premium scale and the guaranteed maximum 
premium scale) are the same as the premium 
rates for policies covering all insureds of the 
same sex, risk class, plan of insurance and 
attained age. 



(6) For policies that become attained-age-based YRT 
policies after an initial period of coverage, the 
approach of this Rule may be used after the initial 
period if: 

(A) The initial period is constant for all insureds of 
the same sex, risk class and plan of insurance; 
or 

(B) The initial period runs to a common attained 
age for all insureds of the same sex, risk class 
and plan of insurance; and 

(C) After the initial period of coverage, the policy 
meets the conditions of Subparagraph (f)(3) of 
this Rule. 

(7) If this election is made, this approach most shall be 
applied in determining reserves for all attained-age- 
based YRT life insurance policies issued on or after 
the effective date of this Rule. 

(g) Exemption from Unitary Reserves for Certain n-Year 
Renewable Term Life Insurance Policies - Unitary basic reserves 
and unitary deficiency reserves need not be calculated for a 
policy if the following conditions are met: 

(1) The policy consists of a series of n-year periods, 
including the first period and all renewal periods, 
where n is the same for each period, except that for 
the final renewal period, n may be truncated or 
extended to reach the expiry age, provided that this 
final renewal period is less than 10 years and less than 
twice the size of the earlier n-year periods, and for 
each n-yea r period, the premium rates on both the 
initial current premium scale and the guaranteed 
maximum premium scale are level; 

(2) The guaranteed gross premiums in all n-year periods 
are not less than the corresponding net premiums 
based upon the 1980 CSO Table with or without the 
10-year select mortality factors; and 

(3) There are no cash surrender values in any policy year, 
(h) Exemption from Unitary Reserves for Certain Juvenile 

Policies - Unitary basic reserves and unitary deficiency reserves 
need not be calculated for a policy if the following conditions 
are met, based upon the initial current premium scale at issue: 



(1) 
(2) 



(3) 



At issue, the insured is age 24 or younger; 

Until the insured reaches the end of the juvenile 

period, which must shall occur at or before age 25, the 

gross premiums and death benefits are level, and there 

are no cash surrender values; and 

After the end of the juvenile period, gross premiums 

are level for the remainder of the premium paying 

period, and death benefits are level for the remainder 

of the life of the policy. 



Authority G.S. 58-2-40: 58-58-50(dJ: 58-58-50(k}. 

.0405 CALCULATION OF 11 NCAC 11 .0401(c) 

(a) General 
(1) Policies with a secondary guarantee include: 

(A) A policy with a guarantee that the policy will 
remain in force at the original schedule of 



NORTH CAROLINA REGISTER 



January 14, 2000 



1232 



PROPOSED RULES 



benefits over a period exceedi n g five yea r s, 
benefits, subject only to the payment of 
specified premiums; 

(B) A policy in which the minimum premium at 
any futu r e duration beyond the end of the fifth 
p oUcy year is less than the corresponding one- 
year valuation premium, calculated using the 
maximum valuation interest rate and the 1 980 
CSO valuation tables with or without ten-year 
select mortality factors, or any other table 
adopted after the effective date of this Rtrkr 
Section by the NAIC and p r omulgated b y 
re gulat i o n adopted as a rule by the 
Commissioner for this purpose; or 

(C) A policy with any combination of Parts (A) 
and (B). 

( 2 ) A secondary guarantee period is the longest period for 
which the policy is guaranteed to remain in force 
subject only to a secondary guarantee. When a policy 
contains more than one secondary guarantee, the 
minimum reserve shall be the greatest of the 
respective minimum reserves at that valuation date of 
each unexpired secondary guarantee, ignoring all 
other secondary guarantees. Secondary guarantees 
that are unilaterally exte n ded changed by the insurer 
after issue shall be considered to have been made at 
issue. Reserves described in Paragraphs (b) and (c) of 
this Rule shall be recalculated from issue to reflect the 
ext e nsions, these changes. 

(3) Specified premiums mean the premiums specified in 
the policy, the payment of which guarantees that the 
policy will remain in force at the original schedule of 
benefits, but which otherwise would be insufficient to 
keep the policy in force in the absence of the 
guarantee if maximum mortality and expense charges 
and minimum interest credits were made and any 
applicable surrender charges were assessed. 

(4) For purposes of this Rule, the minimum premium for 
any policy year is the premium that, when paid into a 
policy with a zero account value at the beginning of 
the policy year, produces a zero account value at the 
end of the policy year. The minimum premium 
calculation mtist shall use the policy cost factors 
(including mortality charges, loads and expense 
charges) and the interest crediting rate, which are all 
guaranteed at issue. 

(5) The one-year valuation premium means the net one- 
year premium based upon the original schedule of 
benefits for a given policy year. The one-year 
valuation premiums for all policy years are calculated 
at issue. The select mortality factors defined in 1 1 
NCAC IIF. 040,1 (a)(2), .0403 (a)(3). .0403 (a)(4), 
.0403(b)(2), .04()3(b)(3), and .0403(b)(4) may not be 
used to calculate the one-year valuation premiums. 

(6) The one-year valuation premium should refiect the 
freuucncy of fund processing, as well as the 



d istribution of deaths assumption employed in the 
calculation of the monthly mortality charges to the 
fund. 

(b) Basic reserves for the secondary guarantees shall be the 
segmented reserves for the secondary guarantee period. In 
calculating the segments and the segmented reserves, the gross 
premiums shall be set equal to the specified premiums, if any, or 
otherwise to the minimum premiums, that keep the policy in 
force and the segments will be determined according to the 
contract segmentation method as defined in 11 NCAC IIP 
.0402(2). 

(c) Deficiency reserves, if any, for the secondary guarantees 
shall be calculated for the secondary guarantee period in the 
same manner as described in 1 1 NCAC 1 1 F .0404(b) with gross 
premiums set equal to the specified premiums, if any, or 
otherwise to the minimum premiums that keep the policy in 
force. 

(d) TTie minimum reserves during the secondary guarantee 
period are the greater of: 

( 1 ) The basic reserves for the secondary guarantee plus 
the deficiency reserve, if any, for the secondary 
guarantees; or 

(2) The minimum reserves required by other rules or 
regulations governing universal life plans. 



B 



to 
m 



Authority G.S. 58-2-40: 58-58-50(d): 58-58-50(kj. 

SECTION .0500 - NEW ANNUITY VALUATION 
MORTALITY TABLES 



i\ 



.0501 DEFINITIONS 

As used in this Section: 

(1) "1983 Table ]aZ means that mortality table developed 
by the Society of Actuaries Committee to 
Recommend a New Mortality Basis for Individual 
Annuity Valuation and adopted as a recognized 
mortality table for annuities in lune 1982 by the 
NAIC. 

(2) "1983 GAM Table" means that mortality table 
developed by the Society of Actuaries Committee on 
Annuities and adopted as a recognized mortality table 
for annuities in December 1983 by the NAIC. 

(3J "1994 GAR Table" means that mortality table 
developed by the Society of Actuaries Group Annuity 
Valuation Table Task Force. The 1 994 GAR Table is 
included in the report on pages 865-919 of Volume 
XL VII of the Transactions of the Society of Actuaries 
(1995). 

(4) "Annuity 2000 Mortality Table" means that mortality 
table developed by the Society of Actuaries 
Committee on Life Insurance Research. The Annuity 
2000 Table is included in the report on pages 2 1 1 -249 
of Volume XL VII of the Transactions of the Society 
of Actuaries (1995). 



I 

«!' 

nil 



well as the Authority G.S. 58-2-40: 58-58-50(k). 



1233 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 m 



PROPOSED RULES 



(c) Except as provided in Paragraph (d) of this Rule, the 
Annuity 2000 MortaHty Table shall be used for determining the 



Tiinimum standard of valuation for any individual annuity or 
3ure endowment contract issued on or after January 1. 2000. 



(d) The 1983 Table "a" without projection [s to be used for 
determining the minimum standards of valuation for an Proposed Effective Date: July I, 2000 



0502 INDIVIDUAL ANNUITY OR PURE 
ENDOWMENT CONTRACTS 

(a) Except as provided in Paragraphs (b) and (c) of this Rule, 
;he 1983 Table "a" is recognized and approved as an individual 
nnuity mortality table for valuation and, at the option of the 



:ompany. may be used lor purposes of determining the 



ninimum standard of valuation for any individual annuity or 



lure endowment contract issued on or after April 19. 1979. 



(b) Except as provided in Paragraph (c) of this Rule, either 
he 1983 Table "a" or the Annuity 2000 Mortality Table shall be 



ised for determining the minimum standard of valuation for any 



ndividual annuity or pure endowment contract issued on or after 



lanuary 1. 1987. 



In using the 1 994 GAR Table, the mortality rate for a person 
age X in year ( 1994 + n) is calculated as follows: 

where the q. '''""*s and AA ,s are as specified in the 1994 GAR 
Table. 

Authority G.S. 58-2-40: 58-58-50(k). 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the NC Department of Insurance intends to amend the 
rules cited as 1 1 NCA C12.170I-.1 703, . 1 707. . 1 709. Notice of 
Rule-making Proceedings was published in the Register on 
November 15. 1999. 



individual annuity or pure endowment contract issued on or after 



January \^ 2000. solely when the contract is based on life 



:ontingencies and is issued to fund periodic benefits arising 



from: 



ill 

01 



Settlements of various forms of claims pertaining to 

court settlements or out of court settlements from tort 

actions; 

Settlements involving similar actions such as worker's 

compensation claims; or 

Settlements of long term disability claims where a 

temporary or lUe annuity has been issued rn lieu of 

continuing disability payments. 



A Public Hearing will be conducted at 10:00 a.m. on January 
31. 2000 at the Dobbs Building. 3''' Floor Hearing Room. 430 N. 
Salisbuiy Street, Raleigh, NC. 

Reason for Proposed Action: The 1999 NC General Assembly 
made technical changes to the viatical settlement laws in S.L 
1999-351 which requires amendments to these rules. 

Comment Procedures: Written comments may be sent to 
Rebecca Hill. NC Department of Insurance. PO Bo.x 26387. 
Raleigh, NC 27611. 



Authority G.S. 58-2-40: 58-58-50{k). 



0503 GROUP ANNUITY OR PURE ENDOWMENT 
CONTRACTS 

(a) Except as provided in Paragraphs (b) and (c) of this Rule. 
the 1983 GAM Table, the 1983 Table "a" and the 1994 GAR 
Table are recognized and a pproved as group annuity mortality 



Fiscal Impact 
State Local 



Sub. None 



tables for valuation and, at itie option of the company, any one 



ivf these tables my be used for purposes of valuation for an 
annuity or pure endowment purchased on or after April 19, 
' 979, under a group annuity or pure endowment contract. 

(b) Except as provided in Paragraph (c) of this Rule, the 1983 
GAM Table or the 1 994 GAR Table shall be used for 



detemiining the minimum standard of valuation for any annuity 



or pure endowment purchased on or after January 1. 1987. under 



a group annuity or pure endowment contract. 

(c) The 1994 GAR Table shall be used for determining the 
minimum standard of valuation for any annuity or pure 
ndowment purchased on or after January J_, 2000. under a 



group annuity or pure endowment contract. 



If Authority G.S. 58-2-40: 58-58-50{k). 



0504 APPLICATION OF THE 1994 GAR TABLE 



CHAPTER 12 - LIFE AND HEALTH DIVISION 
SECTION .1700 - VIATICAL SETTLEMENTS 

.1701 DEFINITIONS 

(a) The definitions in G.S. 58-58-42 (a) are incorporated into 
this Section by reference. 

(b) As used in this Section. "Division" means the Life and 
Health Division of the Department of Insurance. 

(c) As used in this Section: 

(1 ) "Broker" has the same meaning as "Viatical 
Settlement Broker." 

(2) "Provider" has the same meaning as "Viatical 
Settlement Provider." 

(3) "Representative" has the same meaning as "Viatical 
Settlement Representative." 

Authority G.S. 58-2-40: 58-58-42. 

.1702 VIATICAL SETTLEMENT PROVIDERS 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1234 



PROPOSED RULES 



(a) An application for provider registration shall be filed with 
the Division. 

(b) Only those individuals named in the application may act 
as providers. 

(c) A provider shall submit vvfith the application a plan of 
operation, including lull particulars on the manner in which the 
provider proposes to operate in North Carolina and the type or 
types of insurance policies or contracts it intends to viaticate. 

(d) The providers plan of operation shall be a narrative 
overview of the providers business and shall include the 
following information: 

( 1 ) A certified copy ofthe provider's charter and by-laws, 
if a corporation, and a copy of the partnership 
agreement, if a partnership. 

(2) A chart showing the relationship of the provider to 
any parent, affiliated, or subsidiary corporation. 

(3) A detailed description of the provider's marketing 
techniques, including a description of training 
programs for those individuals who will have direct 
contact with viators. 

(4) A list of the names of provider's directors and 
management personnel, including job title and a brief 
description of the job duties. 

(5) A schedule listing the names of financial institutions 
with which the provider has escrow trust agreements, 
indicating the balance on each account and copies of 
all escrow and trust agreements. 

(6) A detailed description of what steps through which 
the viator will have access to funds, including the 
source that will make such funds available. 

(7) A schedule listing the names of all financing entities 
with which the provider participates in financing 
transactions. 

(8) A statement fully disclosing the identities of ah 
stockholders directly or indirectly holding ten percent 
(10%) or more of the provider, and all partners, 
directors, officers, and employees of the provider, 
depending on whether the provider js a partnership, 
corporation, or limited liability company. 

(e) A provider shall i mmed i ately notify the Division of any 
change in the address of the provider and of any change in the 
officers partners, officers, and directors of the pr ov i de r , within 
10 business days after the change. 

(f) Each provider shall notify the Division of any change in 
the plan of operation or financial information filed with its 
application within 10 business days after the change. 

(g) Each provider shall maintain net capital of at least one 
hundred thousand dollars ( $ 1 00.000), or net capital plus a surety 
bond totaling at least one hundred thousand dollars ($100,000). 
As used in this Rule, "net capital" means the excess of total 
assets over total liabilities as determined by generally accepted 
accounting principles. If any of a provider's assets have been 
depreciated, the amount of depreciation relative to any particular 
asset may be added to the depreciated cost of the assets to 
compute the total assets; provided however, that the amount 
resulting after adding such depreciation shall not exceed the fair 



IH 



market value of the asset. For the purpose of calculating the 
appropriate amount of the surety bond that is required by this 
Rule, net capital shall be presumed to be zero ($0.00) in^ i 

situations in which a provider'sliabilities exceed the provider's^H '' 

" is 

If 



assets. 

(h) A power of attorney designating the Commissioner as the 
provider's agent for service of legal process shall be filed by 
every provider. 

Authority G.S. 58-2-40; 58-16-30: 58-58-42. 

.1703 VIATICAL SETTLEMENT BROKERS AND 
REPRESENTATIVES 

(a) No person shall act as a broker or re presentative without 
first registering with the Agent Services Division. 

(b) The Commissioner shall suspend, revoke, or refuse to 
renew the registration of any broker or representative if the 
Commissioner finds that: 

( 1 ) There was any misrepresentation in the application for 
registration; 

(2) The broker or representative has been found guilty of 
fraudulent or dishonest practices, has been found 
guilty of a felony or any misdemeanor of which 
criminal fraud is an element, or is otherwise shown to 
be financially irresponsible; or 

( 3 ) The broker or representative has placed or attempted 
to place a contract with an unregistered provider. 

(c) In the absence of a written ag r eement between a viato r 
and a b r oke r maki n g the broke r the viato r 's agent, a b r o kerTS^fl 
presumed to be a n agent of the pr ov i de r. In the absence of a^ 
written agreement between a viatical settlement representative 
and a viatical settlement broker naming the representative as the 
broker's agent, a representative is presumed to be an agent of the 
provider. 

(d) A broker shall not, without the written agreement ofthe 
viator obtained before performing any services in connection 
with a viatical settlement, seek or obtain any compensation from 
the viator. 

(e) A power of attorney designating the Commissioner as the 
broke r 's agent of the broker or representative for service of legal 
process shall be filed by every b r oke r . broker and 
representative. 

Authority G.S. 58-2-40: 58-16-30: 58-58-42. 

.1707 SOLICITATION 

(a) A proridcT provider, representative, or broker shall not 
discriminate in the solicitation or making of contracts on the 
basis of race, age, sex, natural origin, creed, or religion. 

(b) A pr ovide r provider, representative, or broker shall not 
pay or offer to pay any finder's fee, commission, or other 
compensation to any viator's physician, attorney, accountant, or 
other person providing medical, legal, or financial planning 
services to the viator, or to any other person acting as an agent 
of the viator with respect to the viatical settlement. 

(c) P r ovide r s a n d broke r s A provider, representative, or 



1235 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 |« 



PROPOSED RULES 



jroker shall not solicit any investor who could infiuence the 



reatment of the illness of the viator whose coverage would be 

«.he subject of the investment, 
(d) Contacts for the purpose of determining the health status 
jf a viator by a p rovide r provider, representative, or broker after 
he contract has been signed shall be limited to once every three 
Tionths for viators with a life expectancy of more than one year, 
and to no more than one per month for viators with a life 
;xpectancy of one year or less. The p r ov i der provider, 
epresentative. or broker shall explain the procedure for these 



;ontacts before the contract is executed. 
Authority G.S. 58-2-40: 58-58-42. 

1709 DISCLOSURE 

(a) Every provider shall deliver an information booklet to 
;very viator. Delivery of the booklet shall be acknowledged by 
the viator in the application form. The information booklet shall 
nclude the following 

( 1 ) How viatical settlements operate. 

(2) Possible alternatives to viatical settlements for 
persons with catastrophic or life-threatening illnesses. 
including accelerated death benefits offered by the 
issuer of the life insurance policy or certificate or 
loans secured by the life insurance policy or 
certificate. 

Any tax consequences that may result from entering 
into a contract. 

Any consequences of interruption or loss of assistance 
as provided by medical or public assistance programs. 
The viator's right to rescind a contract. 
The identity of any person who will receive any fee or 
compensation from the provider with respect to the 
contract and the amount and terms of such 
compensation. 

The providers complete name, main office address, 
and telephone number. 

(b) The provider shall disclose to the viator, either on the 
application or through the information booklet, that the proceeds 
payable to the viator may not be exempt from the viators 
:reditors, personal representatives, trustees in bankruptcy and 
receivers in state and federal courts. 

(c) The provider shall disclose to each viator, either on the 
application or through the information booklet, that the proceeds 
under a contract will be made in a lump sum. The disclosure 
shall state that the installment payments are not permissible 
unless the provider is a licensed insurance company or the 
provider has effected the purchase of an annuity or similar 
financial instrument issued by a licensed insurance company. 

(d) The provider shall disclose on the application or through 
the information booklet that medical, financial, or other personal 
information obtained from the viator will not be disclosed to any 
other person without the viator's specific written consent. 

(e) The provider shall disclose on the application or through 
^■he information booklet the procedures available concerning the 

payment of death benefit proceeds for any insured other than the 
viator or for the payment of accidental death proceeds. 



(4) 

(5) 
(6) 



(7) 



(f) The provider, upon receipt of an application to viaticate 
and after determining the value to be offered in return for the 
assignment or transfer of the death benefit or ownership of a life 
insurance policy or certificate to the provider, shall deliver a 
proposal to the viator before the contract is to be signed. The 
proposal shall disclose the following information: 

(1) Insurance contract death benefit in each of the next 10 
years if the insurance contract is not viaticated. 

(2) Amount of death benefit to be viaticated. 

(3) Policy cash value before deducting any loan. 

(4) Policy net cash value after deducting any loan. 

(5) Policy death benefit less net cash value. 

(6) Amount offered to viator. 

(7) Whether any supplemental benefit or benefits 
including the following benefits, are present, will be 
continued and, if so, the source of premium payment 
and the beneficiary of the proceeds of such 
supplemental b e n efit : benefit, and the provider's 
interest in each benefit: 

(A) Accidental death and dismemberment benefit. 
benefit, including the amount of the benefit. 

(B) Disability income. 

(C) Waiver of premium or of monthly deduction 
waiver. 

(D) Guaranteed insurability options. 

(E) Children or spouse coverage. 

(8) Name of the insurer, and whether the insurer does or 
does not have an accelerated death benefit program 
for which the viator qualifies. 

(9] The information required by G.S. 58-58-42(gl ). 

(g) The proposal shall include a notice stating that a detailed 
description of how the payment amount was determined, 
including interest rate, expense factors, and the assumed life 
expectancy used in the determination, may be obtained by a 
written request made to the provider. 

(h) Upon a written request by the viator for a detailed 
description of how the payment amount was determined, the 
provider shall provide a detailed description stating the assumed 
life expectancy in months, the interest rate used to discount the 
amount at risk, the adjustments, if any, for future premiums, 
dividends and additional amounts, broker's or representative's 
compensation, and retention for other expenses, risk charge, and 
profit. 

(i) Every broker and representative shall provide a written 
statement to every viator before completion of any application 
to viaticate that describes how the broker and representative will 
be compensated. 

ijj The provider shall disclose to the viator, either on the 
application or in the information booklet, the provision in G.S. 
58-58-42(s)(7). 

(k) The provider shall disclose on the application or in the 
information booklet that the identity of the viator will not be 
disclosed except under the conditions set forth \n G.S. 58-58- 
42(el)(l ) through [3] or as otherwise allowed or required by 
law. The provider shall provide the conditions in G.S. 58-58- 
42(el )( I ) through (3) to the viator. 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1236 



PROPOSED RULES 



Authority G.S. 58-2-40: 58-58-42. 

Notice is hereby given in accordance with G.S. I50B-2I.2 
that the NC Department of In.iurance intends to adopt the 
ride cited as II NCAC 13 .0.^26 and amend the rules cited as 
.03I7-.03I8, .0324. Notice of Rule-making Proceedings was 
published in the Register on November 15. 1999. 

Proposed Effective Date: y((/v /, 2000 

A Public Hearing will be conducted at 10:00 a.m. on Jcmuary 
31. 2000 at the Dohbs Building, f' Floor Hearing Room. 430 N. 
Salisbuiy Street, Raleigh, NC. 

Reason for Proposed Action: The 1 999 NC General Assembly 
made changes to the regulations of premium finance companies 
in S.L. 1999-157 which requires the amendments and adoption 
of a new rule. 

Comment Procedures: Written comments may be sent to Fred 
Mohn. NC Department of Insurance, PO Bo.x 26387, Raleigh, 
NC276II. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER 13 SPECIAL SERVICES DIVISION 



SECTION .0300 



INSURANCE PREMIUM FINANCE 
COMPANIES 



.0317 TEN-DAY NOTICE 

The ten-day written notice of intent to cancel as described in 
G.S. 58-35-85 (1) shall include the name and address of the 
premium finance company, the premium finance agreement 
number, the date the notice is ma i led, delivered or sent, and the 
amount of the installment in default. A copy of the ten-day 
notice, or a listing of delinquent insureds showing the same 
general information shall be sent to the insurance agent shown 
on the premium finance agreement at the same time notice is 
given to the insured. 

Authority G.S. 58-2-40: 58-35-85(1). 

.0318 NOTICE OF CANCELLATION 

The notice of cancellation as described in General Statute 58- 
35-85 (2) shall be signed by the owner or an officer of the 
premium finance company (the owner or officer's facsimile 
signature may be used), shall have in bold print at its top the 
wording "Notice of Cancellation" and shall include the name and 
address of the insured; the name and address of the insurance 
company; the name and address of the premium finance 
company; the insurance company policy number; a certification 



^ 



Re; 

/Of 

k 



Co 



that the ten-days notice of intent to cancel has been furnished to 
the insured; the authority under which the policy is to be 
canceled; the date the notice of cancellation is marted delivered 
or sent to the insured and to the insurance company; th( 
effective date of cancellation; and a notice stating, "If 
automobile liability insurance is included, you are cautioned that 
financial responsibility is required to be maintained continuously 
throughout the registration period and that operation of a motor 
vehicle without maintaining such financial responsibility is a 
misdemeanor, the penalty for which is loss of registration plate, 
and fine or imprisonment, in accordance with the motor vehicle 
laws of the State of North Carolina as they may be amended 
from time to time". 

Authority G.S. 58-2-40: 58-35-85(2). 

.0324 DISHONORED CHECKS 

Upon a cancellation when th e i nsu r e r has r eceived notice that 
the return premium has bee n assigned to a p r emium fi n anc e 
company, the insure r shall, within 60 days of such notice, 
fo r wa r d to the p r emium finance compa n y any gross une a rn ed 
premium. When the gross unearned premium is i n excess of that 
amount due to the premium fi n ance company, the premium 
fmance com p a n y shall, within ten business days, fo r wa r d such 
excess amou n t to the i nsured by mailing it to the last known 
address of the insu r ed, i n the event that the If, for the premium 
being financed, an insurance agent holds a bad dishonored check 
given by the insured as dow n payment down payment, o n th e 
cont r act in question, certification to the licensee gremiuiTMn 
finance company by the agent that he holds a trad dishonored^r I 
check and that the agent agrees to hold the lice ns e e premium 
finance company harmless shall entitle the licensee premium 
finance company to make any remittance due the insured to the 
agent and not to the insured, provided that no remittance of 
return premium due the insured shall be made to the agent in any 
amount in excess of the amount of the bad dishonored check. A 
copy of the bad dishonored check shall be submitted to the 
licensee premium finance company by the agent at the time of 
certification. 



Authority G.S. 58-2-40: 58-35-85. 

.0326 PREMIUM FINANCE AGREEMENT TYPE 
STANDARD 

The printed portion of each original premium finance 
agreement shall be in eight point type. An inadvertent change in 
the type size caused by facsimile or other electronic 
transmission, copying, or other means is not a violation ot' this 
Rule. 

Authority G.S. 58-2-40: 58-35-50. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 



1 



1237 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



PROPOSED RULES 



Notice is hereby given in accordance with G.S. I50B-2I.2 
that the 






e Environmental Management Commission intends 
to amend rule cited as 15A NCAC 2D . 1201 with changes from 
he proposed text noticed in the Register. VoUinie 14, Issue 3, 
Pages 186 - 189. 



Proposed Effective Date: July 1. 2000 

Reason for Proposed Action: The Environmental Management 
Commission has requested that the comment period be extended 
for Rule ISA NCAC 2D .1201 that went to public hearing on 
August 20. 1999 in Raleigh. North Carolina. The comment 
period is extended to specifically receive comment on the 
revision to Subparagraph (c)(2) of Rule ISA NCAC 2D. 1201. 

Comment Procedures: Any person desiring to comment is 
requested to submit a written statement for inclusion in the 
record of proceedings. The comment period will remain open 
until Februaiy 14. 2000. Comments should be sent to and 
additional infoiTtiation concerning the proposal may be obtained 
by contacting: Mr. Thomas C Allen. Division of Air Quality. 
2728 Capital Blvd.. 1641 Mail Sen-ice Center, Raleigh. NC 
27699-1641. orat(919)733-1489(phone)/(919)71S-7476(fa.\), 
or thom_allen@ncair.net. 



Fiscal Impact 



State 



Local 



Sub. 



None 
/ 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION CONTROL 
REQUIREMENTS 

SECTION .1200 - CONTROL OF EMISSIONS FROM 
INCINERATORS 

1201 PURPOSE AND SCOPE 

(a) This Section sets forth rules for the control of the 
emissions of air pollutants from incinerators. 

(b) The rules in this Section apply to all types of incinerators 
as defined by 15A NCAC 2D .0101(20), including incinerators 
with heat recovery and industrial incinerators. 

(c) The rules in this Section do not apply to: 

(1) afterburners, flares, fume incinerators, and other 
similar devices used to reduce the emissions of air 
pollutants from processes, whose emissions shall be 
regulated as process emissions; 

(2) any boilers or industrial furnaces that burn waste as a 
foel; fuel, except hazardous waste as defined in 40 
CFR 260.10; 

(3) air curtain burners, which shall comply with Section 
. 1 900 of this Subchapter; or 

(4) incinerators used to dispose of dead animals or 
poultry that meet the following requirements: 
(A) the incinerator is located on a farm and is 



01 
14} 
i5J 



owned and operated by the farm owner or by 
the farm operator; 

(B) the incinerator is used solely to dispose of 
animals or poultry originating on the farm 
where the incinerator is located; 

(C) the incinerator is not charged at a rate that 
exceeds its design capacity; and 

(D) the incinerator complies with Rule .0521 
(visible emissions) and .0522 (odorous 
emissions) of this Subchapter. 

(d) If the incine r ator is used solely to c r emate pets or if the 
emissions of all toxic air p o llutants from an inci n e r ator and 
associated waste handling and storage are less than the levels 
listed in ISA NCAC 2Q .0711, the incine r ato r shall be exempt 
f r om Rules .120 5 (0 through (p), and .1206 of this Section. 
Sewage sludge incine r ators, sludge i n cine r ato r s, municipal waste 
combusto r s at small and large municipal waste combustor 
plants, a n d HMIWIs a r e not eligible fo r exemption under this 
Paragraph. 

(d)tc) If an incinerator can be defined as being more than one 
type of incinerator, then the following order shall be used to 
determine the standards and requirements to apply: 
(1 ) hazardous waste incinerators; incine r ators, 
sewage sludge incinerators; incine r ators, 
sludge incinerators; incine r ato r s, 
municipal waste combustors; combustor at a large or 
small municipal waste combusto r plant, 
hospital, medical, or infectious waste incinerators 
(HMIWIs); HMIWIs, 

(6) conical incinerators; 

(7) crematory incinerators; incine r ators, and 

(8) other incinerators. 

{e} Referenced document SW-846 "Test Methods for 
Evaluating Solid Waste", Third Edition, cited by Rules in this 
Section is hereby incorporated by reference and does not include 
subsequent amendments or editions. A copy of this document 
is available for inspection at the North Carolina Department of 
Environment and Natural Resources Library located at 512 
North Salisbury Street, Raleigh, NC 2760.^. Copies of this 
document may be obtained through the US Government Printing 
Office, Superintendent of Documents, P.O. Box 371954, 
Pittsburgh. PA 15250-7954, or by calling (202) 783-3238. The 
cost of this document is three hundred nineteen dollars 
($319.00). 

Authority G.S. 143-215. 3(a)(1): I43-2IS. 107(a)(1). (3).(4).(S). 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the Commission for Health Senices intends to adopt 
rules cited as ISA NCAC 18A .0188 - .0191: .0433 - .043S: and 
amend rules cited as ISA NCAC 18A .0134. .0301. Notice of 
Rule-malting Proceedings was published in the Register on 
November I. 1999. 

Proposed Effective Date: August I. 2000 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1238 



PROPOSED RULES 



A Public Hearing will be conducted at 9:00 a.m. on February 
2. 2000 at the Archdale Bldg.. Ground Floor Hearing Room. 
512 N. Salisbuiy Street.. Raleigh, NC. 

Reason for Proposed Action: Title 21 of the Code of Federal 
Regulations Part 123 requires that dealers shipping seafood 
products in interstate commerce develop and implement a 
Hazard Analysis Critical Control Point Plan for their plants. 
Additionally, the National .Shellfish Sanitation Program recjuires 
that all states in the Program develop HACCP rules. 

Comment Procedures: Comments may be submitted to Dave 
Clawson. Shellfish Sanitation Section. PO Bo.x 769. Morehead 
Cit}-. NC 28557. (252)726-6827 through Februaiy 14. 2000. 



Fiscal Impact 
State Local 



Sub. 



None 



CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .0100 - HANDLING: PACKING: AND 
SHIPPING OF CRUSTACEA MEAT 

.0134 DEFINITIONS 

The following definitions shall apply throughout this Section; 
however, nothing in this Section shall be construed as expanding 
or restricting the detlnitions in G.S. 106-129 and G.S. 106-130: 

(1) "Adulterated" as used in G.S. 106-129 means the 
following: 

(a) Any cooked Crustacea or Crustacea meat that 
does not comply with these Rules; 

(b) Any cooked Crustacea or Crustacea meat which 
exceeds the bacteriological standards in Rule 
.0182 of this Section; 

(c) Any cooked Crustacea or Crustacea meat which 
has been deemed to be an imminent hazard; 

(2) "Code date" means the date conspicuously placed on 
the container to indicate the date that the product was 
packed. 

(3) "Cook" means to prepare or treat raw Crustacea by 
heating. 

(4) " Critical control point" means a point, step or 
procedure in a food process at which control can be 
applied, and a food safety hazard can as a result be 
prevented, eliminated or reduced to acceptable levels. 

(5) " Critical limit" means the maximum or minimum 
value to which a physical, biological or chemical 
parameter must be controlled at a critical control point 
to pre\ent, eliminate or reduce to an acceptable level 
the occurrence of the identified food safety hazard. 

t+)(6) "Crustacea meat" means the meat of crabs, lobster, 

shrimp or crayfish. 
(5^(7) "Division" means the Division of Environmental 



Health or its authorized agent. 
f6^(8) "Food-contact surface" means the parts of equipment, 

including auxiliary equipment, which may be in 

contact with the food being processed, or which may 

drain into the portion of equipment with which food' 

is in contact. 
(9) "Food safety hazard" means any biological, chemical 

or physical property that may cause a food to be 

unsafe for human consumption. 
t7l (10) "Foreign" means any place or location outside the 

United States. 
f8) (l 1 ) "Fresh Crustacea" means a live, raw or frozen raw 

crab, lobster, shrimp or crayfish which shows no 

decomposition. 

( 12) " HACCP plan" means a written document that 
delineates the formal procedures a dealer follows to 
implement food safety controls. 

(13) " Hazard analysis critical control point (HACCP)" 



m(14) 



fW^(15) 
(+i-)(16) 

H2)(17) 
t«)li8] 



m)(19) 

(20) 

H51(21) 



tSji 



». 



51L 



H^(22) 



means a system of inspection, control and monitoring 
measures initiated by a dealer to identify 
microbiological, chemical or physical food safety 
hazards which are likely to occur in shellfish products 
produced by the dealer. 

"Imminent hazard" means a situation which is likely 
to cause an immediate threat to human life, an 
immediate threat of serious physical injury, an 
immediate threat of serious physical adverse health 
effects, or a serious risk of irreparable damage to the 
environment if no immediate action is taken. i 

"Internal temperature" means the temperature of the' 
product as opposed to the ambient temperature. 
"Misbranded" as used in G.S. 106-130 means any 
container of cooked Crustacea or Crustacea meat 
which is not labeled in compliance with these Rules. 
"Operating season" means the season of the year 
during which a Crustacea product is processed. 
"Pasteurization" means the process of heating every 
particle of Crustacea meat in a hermetically-sealed 40 1 
by 301 one pound container to a temperature of at 
least I 85e F (85e C) and holding it continuously at or 
above this temperature for at least one minute in 
properly operated equipment. The term includes any 
other process which has been found equally effective 
by the Division. 

"Pasteurization date" means a code conspicuously 
placed on the container to indicate the date that the 
product was pasteurized. 

" Person" means an individual, corporation, company, 
association, partnership, unit of goNcrnment or other 
legal entity. 

"Processing" means any of the following operations 
when carried out in conjunction with the cooking of 
Crustacea or Crustacea meat: receiving, refrigerating, 
air-cooling, picking, packing, repacking, thermal! 
processing, or pasteurizing. " 

"Repacker" means a facility which repacks cooked 



t 

Cil 



1239 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



PROPOSED RULES 



Authority G.S. 106-129: 106-130: 130A-230. 

,0188 HAZARD ANALYSIS 

Each dealer shall conduct a hazard analysis to determine the 
food safety hazards that are reasonably likely to occur for each Aiithoritv G.S. 130A-230. 



kind of Crustacea or Crustacea meat product processed by that 
jealer and to identify the preventative measures that the dealer 



:an apply to control those hazards. 



Aiitlioritx G.S. 130A-230. 



0189 HACCP PLAN 

Each dealer shall have and implement a written HACCP Plan. 
Fhe owner or authorized designee shall sign the plan when 



Crustacea meat into other containers. 

-7^ (2,^) "Responsible person" means the individual present in 
a cooked Crustacea facility who is the apparent 
supervisor of the cooked Crustacea facility at the time 
of the inspection. If no individual is the apparent 
supervisor, then any employee is the responsible 
person. 

"8)124] "Sanitize" means a bactericidal treatment by a process 
which meets the temperature and chemical 
concentration levels in ISA NCAC ISA .2619. 

-^ (25) "Standardization report" means a report of tests which 
show that a piece of equipment can produce 
time/temperature results as required by these Rules. 

0)(26) "Thermal processing" means the heating of previously 
cooked Crustacea or Crustacea meat to a desired 
temperature for a specified time in properly operated 
equipment. 



sanitation items: 

(1) Safety of water; 

(2) Condition and cleanliness of food contact surfaces; 

(3) Prevention of cross contamination; 

(4) Maintenance of hand washing, hand sanitizing and 
toilet facilities; 

(5) Protection of Crustacea or Crustacea meat. Crustacea or 
Crustacea meat packaging materials and food contact 
surfaces from adulteration; 

(6) Proper labeling, storage and use of toxic compounds; 

(7) Control of employees with adverse health conditions; 
and 

[8J Exclusion ot' pests from the facility. 

Authority G.S. 130A-230. 

.0191 MONITORING RECORDS 

Monitoring records ot' critical control points and general 
sanitation requirements shall he recorded, as specified in plan, 
signed and dated when recorded. The records shall be reviewed 
by owner or designee within one week of recording. 



implemented and after any modification. The plan shall be 



-eviewed and updated, if necessary, at least annually. The plan 



ihall, at a minimum: 



m 

12] 
13] 
14] 

15] 

16] 

17] 



List the food safety hazards that are reasonably likely 

to occur; 

List the critical control points for each of the food 

safety hazards; 

List the critical limits that must be met for each ot' the 

critical control points; 

List the procedures, and frequency thereof, that will 

be used to monitor each of the critical control points 

to ensure compliance with the critical limits; 

List any corrective action plans to be followed m 

response to deviations from critical limits at critical 

control points; 

Provide a record keeping system that documents 

critical control point monitoring; and 

List the verification procedures, and frequency 

thereof, that the dealer will use. 



Aiithorit}- G.S. 130A-230. 

0190 SANITATION MONITORING 
REQUIREMENTS 

Each dealer shall monitor, at a minimum, the following 



SECTION .0300 - SANITATION OF SHELLFISH - 
GENERAL 

.0301 DEFINITIONS 

The following definitions shall apply throughout Sections 
.0300 to .0900 of this Subchapter: 

(1) "Adulterated" means the following: 

(a) Any shellfish that have been harvested from 
prohibited areas; 

(b) Any shellfish that have been shucked, packed, 
or otherwise processed in a plant which has not 
been permitted by the Division in accordance 
with these Rules; 

(c) Any shellfish which exceed the bacteriological 
standards in Rule .0430 of this Subchapter; 

(d) Any shellfish which are deemed to be an 
imminent hazard; 

(2) "Approved area" means an area determined suitable 
for the harvest of shellfish for direct market purposes. 

(3) "Bulk shipment" means a shipment of loose 
shellstock. 

(4) "Buy boat or buy truck" means any boat which 
complies with Rule .04 1 9 of this Subchapter or truck 
which complies with Rule .0420 of this Subchapter 
that is used by a person permitted under these Rules 
to transport shellstock from one or more harvesters to 
a facility permitted under these Rules. 

(5 ) "Certification number" means the number assigned by 
the state shellfish control agency to each certified 
shellfish dealer. It consists of a one to five digit 
number preceded by the two letter state abbreviation 
and followed by the two letter symbol designating the 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1240 



PROPOSED RULES 



type of operation certified. 

(6) "Critical control point" means a point, step or 
procedure m a food process at which control can be 
applied, and a food safety hazard can as a result be 
prevented, eliminated or reduced to acceptable levels. 

(7) "Critical limit" means the maximum or minimum 
value to which a physical, biological or chemical 
parameter must be controlled at a critical control point 
to prevent, eliminate or reduce to an acceptable level 
the occurrence of the identified food safety hazard. 
"Depuration" means mechanical purification or the 
removal of adulteration from live shellstock by any 
artificially controlled means. 

"Depuration facility" means the physical structure 
wherein depuration is accomplished, including all the 
appurtenances necessary to the effective operation 
thereof. 

"Division" means the Division of Environmental 
Health or its authorized agent. 
"Food safety hazard" means any biological, chemical 



mm 
mm 

mum 
aii 

(12) 
(13) 



or physical property that may cause a food to be 
unsafe for human consumption. 
"HACCP plan" means a written document that 
delineates the formal procedures a dealer follows to 
implement food safety controls. 
"Hazard analysis critical control point (HACCP)" 
means a system of inspection, control and monitoring 
measures initiated by a dealer to identify 
microbiological, chemical or physical food safety 
hazards which are likely to occur in shellfish products 
produced by the dealer. 
f9) (14) "Heat shock process" means the practice of heating 
shellstock to facilitate removal of the shellfish meat 
from the shell. 

ft6)(15) "Imminent hazard" means a situation which is likely 
to cause an immediate threat to human life, and 
immediate threat of serious physical injury, an 
immediate threat of serious physical adverse health 
effects, or a serious risk of irreparable damage to the 
environment if no immediate action is taken. 

H-H( 16) "Misbranded" means the following: 

(a) Any shellfish which are not labeled with a 
valid identification number awarded by 
regulatory authority of the state or territory of 
origin of the shellfish; or 

(b) Any shellfish which are not labeled as required 
by these Rules. 

H^i 17) "Operating season" means the season of the year 

during which a shellfish product is processed. 
H-f^( 18) "Person" means an individual, corporation, company. 

association, partnership, unit of government or other 

legal entity. 
H4)(\9) "Prohibited area" means an area unsuitable for the 

harvesting of shellfish for direct market purposes. 
(+5)(20j "Recall procedure" means the detailed procedure the 



permitted dealer will use to retrieve product from the 
market when it is determined that the product may not 
be safe for human consumption as determined by the 
State Health Director. 

(-h61(21) "Relaying or transplanting" means the act of 
removing shellfish from one growing area or shellfish 
grounds to another area or ground for any purpose. 

fH^(22) "Repacking plant" means a shipper, other than the 
original shucker-packer, who repacks shucked 
shellfish into containers for delivery to the consumer. 

(+^1(23) "Reshipper" means a shipper who ships shucked 
shellfish in original containers, or shellstock, from 
permitted shellstock dealers to other dealers or to 
consumers. 

(4-9^( 24) "Sanitary survey" means the evaluation of factors 
having a bearing on the sanitary quality of a shellfish 
growing area including sources of pollution, the 
effects of wind, tides and currents in the distribution 
and dilution of polluting materials, and the 
bacteriological quality of water. 

t^B){25) "Sanitize" means the a bactericidal treatment by a 
process which meets the temperature and chemical 
concentration levels in 15A NCAC 18A .2619. 

t^tK26) "SELL BY date" means a date conspicuously placed 
on a container or tag by which a consumer is 
informed of the latest date the product will remain 
suitable for sale. 

t22l(27j "Shellfish" means oysters, mussels, scallops and all 
varieties of clams. However, the term shall no 
include scallops when the final product is the shucked 
adductor muscle only. 

(23^(28) "Shellstock" means any shellfish which remain in 
their shells. 

t24)(29j "Shellstock conveyance" means all trucks, trailers, or 
other conveyances used to transport shellstock. 

(£51(30) "Shellstock dealer" means a person who buys, sells, 
stores, or transports or causes to be transported 
shellstock which was not obtained from a person 
permitted under these Rules. 

t26l( 3 1 ) "Shellstock plant" means any establishment where 
shellstock are washed, packed, or otherwise prepared 
for sale. 

(£7^(32) "Shucking and packing plant" means any 
establishment or place where shellfish are shucked 
and packed for sale. 

t£^(33) "Wet storage" means the temporary placement of 
shellstock from approved areas, in containers or floats 
in natural bodies of water or in tanks containing 
natural sea water. 

Authority G.S. 130A-230. 

SECTION .0400 - SANITATION OF SHELLFISH - 
GENERAL OPERATION STANDARDS 

.0433 HAZARD ANALYSIS 



i 



1241 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



PROPOSED RULES 



Each dealer shall conduct a hazard analysis to determine the 
food safety hazards that are reasonably likely to occur for each 



. kind of shellfish product processed by that dealer and to identify 



Authority G.S. 130A-230. 

.0434 HACCP PLAN 

Each dealer shall have and implement a written HACCP Plan. 
Fhe owner or authorized designee shall sign the plan when 



implemented and after any modification. The plan shall be 



he preventatjye measures that the dealer can apply to control 
hose hazards. 



eyjewed and updated, if necessary, at least annually. The plan 



hall, at a minimum: 

List the food safety hazards that are reasonably likely 
to occur; 



Ui 

(2) List the critical control points for each of the food 
safety hazards; 

(3) List the critical limits that must be met for each of the 
critical control points; 

(4) List the procedures, and frequency thereof, that will 
be used to monitor each of the critical control points 
to ensure compliance with the critical limits; 

(5) List any corrective action plans to be followed in 
response to deviations from critical limits at critical 
control points; 

(6) Provide a record keeping system that documents 
critical control point monitoring; and 

(7) List the verification procedures, and frequency 
thereof, that the dealer will use. 

Authority G.S. 130A-230. 

.0435 SANITATION MONITORING 
REQUIREMENTS 

Each dealer shall monitor, at a minimum, the following 
sanitation items: 



(1) Safety of water; 

(2) Condition and cleanliness of food contact surfaces; 

(3) Prevention of cross contamination; 

(4) Maintenance at' hand washing, hand sanitizing and 
toilet facilities; 

(5) Protection of shellfish, shellfish packaging materials 
and food contact surfaces from adulteration; 

(6) Proper labeling, storage and use of toxic compounds; 

(7) Control of eniployees with adverse health conditions; 
and 

(8) Exclusion of pests from the facility. 

Authority G.S. 130A-230. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 50 - BOARD OF EXAMINERS OF 
PLUMBING, HEATING AND FIRE SPRINKLER 



CONTRACTORS 

Notice is hereby given in accordance with G.S. I50B-2I.2 
that the State Board of E.xaminers of Plumbing. Heating 
and Fire Sprinkler Contractors intends to adopt rules cited as 
21 NCAC 50 .0512 - .0514. .1014: amend rules cited as 21 
NCAC50.030I. .0304. .0306. .0310. .0402. .0404, .0406. .0412. 
.0501. .0506. .0508. .1004. .1006. .1101. .1204. .1205. .1210: 
and repeal rides cited as 21 NCAC 50 .1001. .1007 - .1011, 
1013. . 1206. .1212-. 1213. Notice of Rule-making Proceedings 
was published in the Register on September 15.1999 and 
November 15. 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 8:30 a.m. on February 
8, 2000 at the McKinunon Center. Raleigh. NC 

Reason for Proposed Action: The Board has granted two rule- 
making petitions and is in the process of review of all Board 
rules. The changes being considered relate to creation of 
limited or specialty, licenses, fees, probation requirements, 
superrision and employment definitions and rule-making and 
administrative hearing process. 

Comment Procedures: Comments may be directed, in writing 
to the Board at 3801 Wake Forest Road. Suite 201. Raleigh. NC 
27609 on or before Febritaiy 14, 2000, or may be delivered in 
person at the hearing. 



Fiscal Impact 
State Local 



Sub. 



None 



SECTION .0300 - EXAMINATIONS 



.0301 



QUALIFICATIONS DETERMINED BY 
EXAMINATION 

(a) In order to determine the qualifications of an applicant, 
the Board shall provide a written examination in the following 
categories: 

Plumbing Contracting. Class I 

Plumbing Contracting. Class II 

Heating. Group No. I - Contracting. Class I 

Heating. Group No. I - Contracting. Class II 

Heating. Group No. 2 - Contracting, Class I 

Heating. Group No. 3 - Contracting, Class I 

Heating. Group No. 3 - Contracting. Class II 

Fuel Piping 

Plumbing Contracting. Limited Hot Water Heater 

Plumbing Contracting. Limited backfiow prevention 

(b) Each applicant shall be required to read, interpret and 
provide written answers to all parts of the examinations required 
by G.S. 87-2 1(b). except during oral examinations provided 
pursuant to G.S. 87-21(b). 

(c) Applicants for licensure as a fire sprinkler contractor must 



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PROPOSED RULES 



submit evidence of current certification by the National Institute 
for Certification and Engineering Technology (NICET) for Fire 
Protection Engineering Technician, Level III, subfield of 
Automatic Sprinl<ier System Layout as the prerequisite for 
licensure. Current certification by NICET is in lieu of separate 
examination conducted by the Board. 

Aiifhority G.S. 87-18: 87-2 1(a): 87-2 1(b). 

.0304 SPECIAL EXAMINATIONS 

(a) Upon written request, applicants may be permitted to sit 
for examination at a date other than the regular schedule. An 
The expense deposit for a special examination pursuant to G.S. 
87-2 1(b) shall be required in an amount determined by the 
Board. After the special examination is completed and graded, 
or in case of cancellation by the applicant, the Board will apply 
the expense deposit to dete r mine the full cost of the examination 
and refund any balance remaining remaining after applying the 
expe n se deposit . 

(b) The Board may implement a program of additional 
regular examinations, on dates other than April and October, at 
the same cost as set for the regular examinations . 

Authority G.S. 87-18: 87-21(a): 87-21(b). 

.0306 APPLICATIONS: ISSUANCE OF LICENSE 

(a) All applicants for regular examinations shall file an 
application in the office of the executive secretary on or before 
the date set out on the examination application form, which date 
shall be no more than 60 days prior to the examination. 

(b) Applicants for each plumbing or heating examination 
shall present evidence at the time of application on forms 
provided by the Board to establish two years on-site full-time 
experience in the installation, maintenance, service or repair of 
plumbing or heating systems related to the category for which 
license is sought, whether or not license was required for the 
work performed. One year of experience in the design or 
installation of fuel piping is required for fuel piping license. 
One year of experience in the design, piping, fuels, venting and 
location of hot water heaters is required for the Plumbing, 
limited water heater license. One year of experience in the 
design, piping, and location of backflow prevention devices is 
required for the Plumbing, limited backfiow prevention license. 
Practical experience shall directly involve plumbing, heating or 
fuel piping and may include work as a field superintendent, 
project manager, journeyman, mechanic or plant stationary 
operator directly involved in the installation, maintenance, 
service or repair of such systems. Work as a local government 
inspector of plumbing or heating systems while qualified by the 
Code Officials Qualification Board, work as a field 
representative of this Board or work by a graduate of an ABET 
accredited engineering or engineering technology program with 
direct on-site involvement with plumbing or heating system 
construction, construction supervision, plant engineering or 
operation may utilize such work as evidence of practical 
experience; provided that Board members and employees may 



not sit for examination during their tenure with the Board. After 
review, the Board may request additional evidence. Up to one- 
half the experience may be in academic or technical training 
directly related to the field of endeavor for which examinatio 
is requested. The Board shall pro rate part-time work of less 
than 40 hours per week or part-time academic work of less than 
15 semester or quarter hours or work which involves the kinds 
of work set out herein only part of the time. 

(c) The Board shall issue a license certificate bearing the 
license number assigned to the qualifying individual. 

(d) Fire Sprinkler contractors shall meet experience 
requirements in accordance with NICET examination criteria. 

Authority G.S. 87-18: 87-21(b). 

.0310 APPLICATION FOR LICENSURE BY 
RECIPROCITY 

The Board shall grant; grant license by reciprocity pursuant to 
reciprocal licensing agreements worked out with various states 
after mutual review of the applicable licensing standards and 
examinations. 

Authority G.S. 87-18: 87-21(g). 

SECTION .0400 - GENERAL PROCEDURES 

.0402 PERMITS 

(a) A licensed contractor shall assure that a permit is obtained 
from the local Code Enforcement official before commencin 
any work for which a license is required by the Board. The 
contractor shall also assure that a request for final inspection is 
made within 10 days of substantial completion of the work for 
which license is required, absent agreement with the owner and 
the local Code Enforcement official. Absent agreement with the 



'.I 



local Code Enforcement official the licensee js not relie\ed by 



the Board of responsibility to arrange inspection until a 
certificate ot' compliance or the equivalent is obtained from the 
local code enforcement official or the licensee has clear evidence 



of his effort to obtain same. Mutual coordination and 
cooperation is required of both the licensee and Code 
Enforcement official. 

(b) A licensed contractor shall not authorize permits to be 
obtained or allow his license number to appear on permits except 
for work over which he will provide general supervision until 
the completion of the work, for which he holds the contract and 
for which he receives all contractual payments. 

Authority G.S. 87-18: 87-26. 

.0404 ACTIVE EMPLOYMENT 

(a) In each business location, branch or facility of any kind 
from which work requiring a license 

pursuant to G.S. 87, Article 2 is solicited or proposed, or from 
which contracts for such work are 
negotiated or entered into, or from which requests for such work' 
are received or accepted, or from which 



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PROPOSED RULES 



such work is carried out or dispatched, there shall be on-site at 



least one individual who holds 



» qualification in the classification needed for the work being 



;s' li: 



roposed or performed, whose license is 



contracts, and to exercise general 



supervision, as defined in Rule .0505 of this chapter, of all work 



falling within his license qualification. Evidence of 



compliance may be required as a condition of renewal or 



retention of license, and falsification shall 



constitute fraud in obtaining license. 



active on-site employment a pe r so n lice n sed i n accordance with 



the p r ovisions of G.S. 87, Article 2 and wh o se duties are to 



sup e r vise all installations falling within his license qualification, 
(b) Separate place of business o r branch thereof shall mean 



a ny office or facility of any ki n d : 

tfj from whi c h wo r k requiring license is solicited or 



sted in the name of the particular firm or business at that 



location, and who is engaged in the work of 



the firm at the business location or at firm job sites at least 1500 
hours annuallv, and who has the- 



responsibility to make, modify, terminate and set the terms of 



(a^ — I n each separate place of b usi n ess o r b r a n ch thereof 



ipe r ated by a contractor licensed by the Boa r d, there shall be on 



conducted; 







;?-i- 



from which cont r acts fo r work requiring license are 
negotiated or ente r ed into; o r 



?r) from which r equests for work requiring license a r e 

received and ac c ep t ed. 
(b)fc^ A temporary field office used solely to conduct the 
work requiring license involved in an existing contract or 
contracts entered into by the main license office and from which 
no new business is solicited or conducted shall not be deemed a 
separate place of business or branch thereof. 

Authorin G.S. 87-18; 87-21(a)(5): 87-21(a)(6): 87-26. 

.0406 RESPONSIBILITY OF LICENSED PERSON 
EMPLOYED BY FIRM 

(a) The licensed person, whether individually or for a 
corporation, partnership or business with a trade name, shall 
execute all contracts contracts, provide supervision to the extent 
of his qualifications, qualifications and assure that permits are 
obtained. 



(b) A contract, and the responsibility imposed on a licensed 
person to supervise work performed under a contract, may be 
assumed by another licensee in writing upon written notice to 
the Board of the assignment. 

(c) The license number and qualification of the firm will be 
displayed on firm contracts, proposals, permit applications, and 



telephone yellow page advertising. 



\uthority G.S. 87-18; 87-26. 

L0412 GUIDELINES ON DISCIPLINARY ACTIONS 

(a) The provisions of G.S. 87, Article 2, the rules of the 
Joard and the matters referenced therein are the guidelines by 
i'hich the conduct of an entity subject to the authority of the 



Board are evaluated. 

(b) The Board may suspend a license or impose probation 
provisions for violations of 21 NCAC 50 .0402, 21 NCAC 50 
.0403, 21 NCAC 50 .0404 and 21 NCAC 50 .0405. Repeated 
violations may result in revocation. 

(c) The Board may suspend a contractor's license or impose 
probationary terms when a licensee fails to comply with the 
supervision requirements of 21 NCAC 50 .0404, 21 NCAC 50 
.0406 or 21 NCAC 50 .0505. Multiple violations within the 
same proceeding may result in revocation. 

(d) The Board may suspend or revoke a license where it is 
found that the licensee has failed to comply with the minimum 
standards of competence as set forth in 21 NCAC 50 .0505(b). 
The Board may condition the subsequent reinstatement of 
license upon passing of the Board's examination or completion 
of specified educational courses. The Board may impose 
additional conditions of reinstatement. 

(e) The Board may suspend or revoke the license of a 
contractor where it is found that the contractor abandoned a job 
after obtaining funds from the owner. 

(0 As a part of these provisions, the Board may revoke the 
license of any licensee where it is found that the contractor 
through a violation of G.S. 87, Article 2 has increased the risk 
of exposure to carbon monoxide or other harmful vapors, fire, or 
damage resulting therefrom, the release of sewage, methane gas, 
or contamination of the potable water supply. 

(g) The foregoing provisions are illustrative guidelines of 
sanctions imposed by the Board and are not intended to limit the 
authority of the Board or the variety of facts for which action 
may be required in a particular situation. 

(h) Any of the foregoing actions may result in a probation 
period or combination of suspension and probation. Condition 
of probation may include remediation, education, reexamination, 
record-keeping or other provisions likely to deter future 
violation or remedy perceived shortcomings. 

Authority G.S. 87-18; 87-23. 

SECTION .0500 - POLICY STATEMENTS AND 
INTERPRETATIVE RULES 

.0501 AIR CONDITIONING FURTHER DEFINED 

An air conditioning system is an aggregation or assemblage of 
objects united by some form of interaction or interdependence, 
or a group of single or multiple units so combined as to form an 
integral whole, that requires a total of more than 15 tons of 
mechanical refrigeration to function, function-, or operate-or 
move in unison , which produces conditioned air by the lowering 
of temperature for comfort cooling, and requires air distribution 
ducts. Multip le units serving interconnected space and 
aggregating more than 15 tons are included in the foregoing 
whether or not separately ducted or controlled. 

Authority G.S. 87-18; 87-21(a){3). 

.0506 MINOR REPAIRS AND ALTERATIONS 



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PROPOSED RULES 



(a) The initial installation or the subsequent replacement of a 
hot water heater in any structure requires a license in plumbing 
contracting, contracti n g except that the r eplaceme n t of a hot 
wate r heater, with no change in fuel o r e n e r gy sou r ce, e n e r gy 
use rate, r outing or sizing of venting o r piping, constitutes a 
mino r replacement w i th in the mea n ing of G.S. 87-2 1(c). 

(b) The installation of a water purification system which 
interrupts the potable water supply does not constitute a minor 
repair or replacement within the meaning of G.S. 87-2 1(c). 

(c) Any connection, repair, or alteration which requires 
interruption of the potable water supply and if poorly performed 
creates substantial risk of contamination of the potable water 
supply is not a minor repair, replacement or alteration. 

(d) Any connection, repair or alteration which if poorly 
performed creates substantial risk of fire or exposure to carbon 
monoxide, open sewage or other gases is not a minor repair, 
replacement or alteration. 

(e) TTie failure to enumerate above any specific type of repair, 
replacement or alteration shall not be construed in itself to 
render said repair, replacement or alteration as minor within the 
meaning of G.S. 87-2 1(c). 

Aitthorax G.S. 87-18: 87-21 {aHD: 87-2 1(a)(5): 87-2 1(c). 

.0508 HEATING: LICENSE REQUIRED 

(a) A license in heating, group No. 3 is required for the 
installation or replacement of; a furnace, ductwork or condenser 
in a heating, group No. 3 system. 

(b) A license in heating, group No. 3 is required to install or 
replace a self-contained fireplace unit if the unit utilizes ducts or 
a blower to distribute air to areas not immediately adjacent to the 
fireplace itself 

(c) A license in heating, group No. 3 is required when air 
conditioning of less than 15 tons is added to an already installed 
heating, group No. 3 system, provided the existing heating 
system is altered or modified, or there are changes in the duct or 
control system. 

(d) A Heatini; Group No. 2 license is required for the 
installation or replacement of equipment or ductwork in a 
Heating Group No. 2 system. 

Authority G.S. 87-18: 87-21(a)(3): 87-21(a)(5): 87-21(c). 

.0512 EMPLOYEES EXEMPTED FROM 
LICENSURE 

As used in G.S. 87-25. the phrase "bona-fide employee" shall 
mean and refer to an individual who is directly and regularly 
employed in tfie ordinary course of business by a 
contractctrlicensed pursuant to G.S. 87. Article 2^ Factors 
establishing whether the individual is directly and regularly 
employed in tfie ordinary course of business of such contractor 
include, without limitation, the 
following list: 

( 1 ) whether the individual is on the licensed contractor's 
payroll; 

(2) whether the licensed contractor withholds taxes from 



the payment to the individual and performs such other 
acts as are lawfully required of an employer; 

(3) whether the licensed contractor exercises control ove r 
the method and manner of the individual's work; an 

(4) whether the licensed contractor, and not the 
individual, is and remains obligated to the owner for 
the work. Persons acting as independent contractors, 
consultants or subcontractors, or paid as such, are not 
bona fide employees. 

Authority G.S. 87-18: 87-25. 

.0513 HOT WATER HEATER INSTALLATION 

(a) The replacement of a liot water heater in tlie plumbing 
system of a single family residential structure requires either a 
Plumbing Class L Plumbing Class H or a Limited Plumbing 
license, whether or not the replacement involves a change in 
fuel, size, power or location. 

(b) An examination and license limited to tlie technology, 
piping, sizing, location, fuels, venting and 
interconnection of residential hot water heaters, and related 
statutes and rules will tie available 90 days after the effective 
date of this Rule. 

(c) Water heater replacements in applications other than as set 
out in Rule .0513(a) of this Section requires Plumbing Class I 
license. 

Authority G.S. 87-18: 87-21(a)(l): 87-21(b)(l)(2j(5). 

.0514 BACK FLOW PREVENTION 

(a) The installation of backtlow prevention piping and 
backtlow prevention devices to connect from the potable water 
supply at a point beyond the meter on a water supply line not 
exceeding two inches in diametei^requires a plumbing or 
restricted plumbing license. This provision does not purport to 
require license from this Board for installation of lawn sprinkler 
or water purification devices aside from the backtlow prevention 
device. 

(b) An examination and license limited to tlie technology, 
piping, sizing, location. and interconnection of backflow 
preventers, and related statutes and rules will he available 90 
days after the effective date of tins Rule. 

(c) Unless excepted in these rules or elsewhere, work 
involving interruption of Uie potable water 

supply requires plumbing license. 

Authority G.S. 87-18: 87-21(0X1): 87-21(h)( 1 )(2}(5). 
SECTION .1000 - CONTESTED CASES 

.1001 RIGHT TO HEARING 

Wh en the Boa r d acts or p r oposes to act. othe r than in 



w 



-■dings, i n a manne r 



r ule-mak i ng o r declaratory r uli n g p r oceedings, i 

which w i ll affect the rights, duties, o r pr ivileges of a specific 



ide n tifiable 



-has — the — rt*rht — to — an 



lae n tuia n ie — pe r son. — sttcti — person — has — tne — rr 
administrative hearing. When the Board p r oposes to act in such 



^I 



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PROPOSED RULES 



r manner, it shall give all such affected persons notice of their 



r ight to a hearing by mailing by certified mail to them at thei r 



last known address a notice of the proposed acti on a nd a not ic e 



af a right 



to a hearing. 



Authority G.S. 87-18: 150B-38. 

.1004 NOTICE OF HEARING 

(a) Hearings of the Board are commenced and conducted 
insistent with G.S. 150B. Article A. Article 3A. Chapter 150D 



of the General Statutes Tlie Boa r d shall give the party or parties 



i n a contested case a notice of hea r ing not less than 15 days 



be fo r e the hearing. — Said notice shall contain the following 



informalion, — in — addition — to — the — items — specif i ed — in — GtSt 

t+l the nam e , p osit i on, add r ess, and telephone n umber of 

a pe r son at the of fice s of the Board to co n tact fo r 
fu r ther informalio n o r d i scus s io n : 

fi) the date, time, and place fo r a p r e-hea r ing confe ren c e , 

if any; and 

0^ any othe r information deemed r eleva n t to in fo r mi n g 

the parties as to the p r ocedu r e of the hea rin g. 
(b) If the Board determines that the public health, safety or 
welfare requires such action, it may issue an order summarily 
uspending a license. Upon service of the order, the licensee to 
whom the order is directed shall immediately cease the practice 
of plumbing, heating or fire sprinkler contracting in North 
Carolina. The Board shall promptly give notice of hearing 

Iursuant to G.S. 150B-38 following service of the order. The 
uspension shall remain in effect pending issuance by the Board 
fa final agency decision pursuant to G.S. 150B-42, 

Aiithoriiy G.S. 87-18: 150B-3(c}: 150B-38. 

1006 INFORMAL PROCEDURES 

(a) The Board and party or parties may agree at a pre-hearing 
:onference to simplify the hearing by: decreasing the number of 
issues to be contested at the hearing; accepting the validity of 
certain proposed evidence; accepting the findings in certain 
other case with relevance to the case at hand; or agreeing to such 
other matters as may expedite the hearing. 

(b) Prior to commencement to a contested case hearing, the 
Board may invite a licensee to participate in an informal 

onference with one or more board members. An informal 
:onference ordinarily takes place when it appears there may not 
be a need for pr obable cause lo hold a formal hearing. 

(c) As a part of the contested case hearing process, the Board 
may elect to conduct a summary proceeding in a contested case. 
The procedure for a summary proceeding is substantially as 
follows: 

( 1 ) After issuance of a notice of hearing in accordance 
with 21 NCAC 30 .1004, the matter is considered by 
a single board member without a record. Each party 
may tender affidavits, documents and a closing 
statement. Live testimony will not be received. 

(2) Each party may present a suggestion as to the terms of 
a Recommended Order. The presiding board member 



will consider the materials and suggestions and issue 
a Recommended Decision in summary proceeding. If 
there is no objection within a specified time, a 
Summary Order will be received and considered by a 
majority of the Board with a recommendation for 
adoption by the staff, the Board member involved and 
the respondent. 
(3) Any party who does not agree with the recommended 
decision may notify the Board. TTie matter will 
subsequently be heard de novo by a majority of the 
Board or as otherwise provided by 21 NCAC 50 
.1005. The de novo hearing shall be conducted as 
other contested case hearings are conducted pursuant 
to 21 NCAC 50 .1000. The Board member who 
conducted the summary proceedings shall be 
disqualified from the de novo hearing. 

Authority G.S. 87-18: 150B-41. 

.1007 PETITION FOR INTERVENTION 

(a) A person desi r ing to inte r vene i n a co n tested case must 
fi l e a w r itten petition with the Boa r d's office. — The r equest 
shou l d bea r the no t atio n: PETITION TO INTERVENE IN THE 
CASE or (Na m e of case). 

(b) The petition must include the following information: 
("H the name and add r es s of pet i tione r; 



occu p atio n of pe t iti o n e r , whe r e 



(2) the busi n ess o r 

r eleva n t; 

{i) a full ide nt ific atio n of the hea rin g in wh ic h p e tit ion e r 

is seeking to i n te r vene; 

(4) the — statuto r y — or — n on-statuto r y — g r ounds — for 

i n te r vention; 

f5) any claim o r defense in respect of which inte r vention 

is sought; and 

ifi) a summa r y of the arguments o r evidence petitione r 

seeks to p r esent, 
(c) If the Board dete r mines to allow i n te r vention, notice of 
that decision will be issued promptly to all p arties, and lo the 
p et i tione r. — In — cases — of — discretionary — i n te r vent i on, — stich 
notification will include a statement of any l imitations of ti me , 
subject matter, evidence o r whatever else is deemed necessary 
which are imposed on the interveno r . 

(tf) — If the Board's decision is to deny inte r ve n tio n , the 
petitione r will be notified promptly. — Such no tice will be i n 
w r iting, identify i ng the reasons for the d e ni al, and w i ll be issued 
to the p etit i one r and all parties. 

Authority G.S. 87-18: 150B-11: 150B-38. 

.1008 TYPES OF INTERVENTION 

(a) Intervention of R i ght. A pe t ition to intervene as of r ight. 



as p r ovided in the No r th Carolina Rules of Civil P r oced ure , Rule 
24, will be g r a n ted i f the petitioner meets the c r ite r ia of that r ule 
a n d the petitio n is timely. 

fbj Pe r missive Intervention. A petitio n to in te r vene 

pe r missively, as p r ovided in the No r th Ca r ol i na Rules of Civil 
P r ocedu r e. Rule 24, will be g r anted i f the petitioner meets the 



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1246 



PROPOSED RULES 



c r ite r ia of that r ule a n d the Boa r d de t e r mines that : 

fii T h ere i s sufficien t lega l o r factual simila r ity between 

t h e p etit i o n e r 's cla i m e d ri ghts, p ri vileges, o r duties 
and those of the pa r ties to the hea r ing; a n d 

(21 P e r mitti n g i nte rve ntio n by the p etitione r as a pa r ty 

would a i d the p u rp ivse of the hea r i n g. 
(c) — Disc r etiona r y Inte r vention. — Tlie Board may allow 
discretionary intervention, with whatever limits and restrictions 
are deemed appropr i ate. 

Authority G.S. 87-18; 150B-II: I50B-38. 

.1009 DISQUALIFICATION OF BOARD MEMBERS 

(a) Self-disqual i fication. If for any reason a Board membe r 
dete r mines that pe r sonal bias o r other factors render that 
mem b er u n able to hear a contest e d case and p e r fo r m all dut i es 



(5) When a Boa r d member is disqualified prior to the 

commencement of the hea r ing o r after the hea r ing has 
begun, such hea r ing will contir 



I co n t i nue with the rema i n i ng ^n 
mem b e r s sitting p r ovided that the r emaining me mfaersB] 
still constitute a majority of the Boa r d. 

i6) If fou r o r mo r e members of the Boa r d arc disqualified 

p u r suant to this Rule, the Board shall petition the 
Office of Adm in ist r ati v e Hearings to appoint an 
administrative law judge to hea r the contested case 
pu r suant to G.S. 150B-4 Q( e ). 

Authority G.S. 87-18: 150B-11: 150B-38: 150B-40. 

.1010 SUBPOENAS 

(a) Requests for subpoenas for the attendance and testimony 
of witnesses o r fo r the pr oduction of documents, eithe r at a 



in an impa r tial mann e r , that Boa r d memb er sh all volunta r ily hea r ing o r fo r the p u rp oses of discovery, shall be made in 



w r iting to the Board, shall identify any docu m ent sought with 
specificity, and shall include the full name a n d home or business 



all duties 



decl i ne to pa r tic i pate i n the he a rin g o r decision. 

( b ) Peti t ion fo r Disqualification. If for any reason any party 
in a contested case believes that a Boa r d mem b e r is p e r so n ally address of all perso n s to be sub p oenaed a n d, i f known, the date, 
biased or othe r w i se u n able to hea r a co n tested case a n d pe r fo r m t i me, a n d p lace fo r r espo n ding to the subpoena. Tlie Board shall 

issue the r equested subpoenas within three days of receipt of the 
request. 

(b ) Sub p o e nas s hall co n tai n: the ca p t i o n of the case; the name 
and add r ess of the pe r so n sub p oe n a ed ; the date, hour and 
location of the hearing in which the witness is commanded to 
appea r ; a particularized desc r iption of the books, pape r s, records 
o r objects the witness is di r ected to b r ing with him to the 



in an impart i al ma nn e r , the pa r ty may rile a swo rn , 
n ota ri zed affidavit with the Board. Tlie title of such affidavit 

shoul d — brtrr — t+re n otation : AfriDAVIT — 0¥ 

DISQUALIFICATION OF BOARD MEMBER IN THE CASE 
OF (Name of case). 

(c) Contents of Affidavit. Tlie affidavit must state all facts 
the party deems to be releva n t to the disqualificat i on of the 
Boa r d member. 

fd) — Tim e li ne ss and Effect of Affidavit. — An affidavit of 
disqualification will be conside r ed t im ely if filed ten days befo r e 



h eari n g, if a n y; the identity of the pa r ty o n whose applica tknTtheMf 

Cut ^t^ r^i ' ^ T^ 't <l f 'X? t o PI Ifaj- I ' th i » f^ i ■ -> tfJ l^V+ 1 CO I > !-> ' (-W»* P t O T^ f>t t i t* o — <°v4 — t-W** 



issued; the date of issue; the signatu r e of the 



suDpoena was 

p residing officer o r his des i gnee; and a " r etu rn of se r vice". The 



commenceme n t of the hea r ing. — Any othe r affidavit will be " r etu r n of se r vice" fo r m, as filled out, shows the name and 

co n s i de r ed tim e ly p rovided it is filed at the first opportunity after ca p acity of the p e r son se r v i ng the subpoena, the date on which 

the p arty becomes awai - e of fa c ts wh i ch give r ise to a r easonable the subpoena was delivered to the person directed to make 

belief that a Boa r d m e mbe r may be disqualified unde r th i s Rule. se r v i ce, the date on which se r vice was m ade, the p e r son o n 

Whe r e a p etition fo r d i squalificatio n is filed less than ten days whom se r v i ce was made, the manne r i n wh i ch se r vice was 

befo r e o r du r i n g the course of a hearing, the hearing shall made, and the signature of the pe r son making se r vice. 



co n ti n ue with the challenged Boa r d membe r sitting. Petitio n e r 
shall have the o p po r tu n ity to pr ese n t evide n ce su pp o r ting his 
p etiti o n, and the p etition a n d a n y evidence relative thereto 
pr ese n ted at the hea ri ng shall be made a part of the record. Tlie 



(c) Subpoenas shall be served by the sheriff of the county in 
which the p e r son sub p oenaed resides, when the party requesting 
su c h sub p o en a pr e p ays the she ri ff's se r vice fee. The sub p oe n a 
shall be i ssued in duplicate, w i th a " r etu r n of service" form 



Boa r d, before r ende r ing its dec i s i on, shall decide whethe r the attached to each copy. A person serving the subpoena shall fi 

evidence — justifies — d isqual i ficat i on. in — the — event — of 

disqualification, the d i squalified mem b e r will not participate in 
fu r the r del i be r ation o r decision of the case, 
(e) P r ocedu r e for Determi n i n g Disqualification : 



ing tne 
out the " r etu rn of se r vice" form for each copy and properly 
r etu r n o n e co p y of the sub p oe n a, with the attached "retur n of 
se r v i ce" fo r m completed, to the Boa r d. 

(d) Any person r eceiving a subpoe n a f r om the Boa r d may 



t+i The — Board — wrfl — a p poi n t — a — Boa r d — membe r — to obj e ct t h e r eto by filing a written objection to the subpoe n a w i th 



i nvestigate the allegations of the affidavit. 
-Thtr 



the Boa r d's office . 



r) The investigato r wi l l r epo r t to 

of the i n vestigatio n . 



the Board the findings 



(e) — Such objectio n shall i n clude a concise, but comple te; 
stateme n t of r easo n s why the subpoena should be revoked o r 



t9r) The Boa r d shall decide whether to disqualify the modified. These r easons may in clude lack of relevancy of the 

evidence sought, or any othe r r easo n sufficient in law fo r 



ne uoa r u snail aeci 
challe n ged individual. 



(4i The per son whose di.squalification is to be determined holding the sub p oe n a in valid, such as that the evidence is 

will not pa r ticipate i n the decision but may be called 
upon to fu r nish info r mation to the othe r membe r s of 
the Board. 



ing tne s 
p r ivileged, that appearance o r p r oduct i on would be so dis r upti vej 
; to be un r easonable in light of the significance of the evidence 



as to n e un r easonanie in iignt ot tne si^ 
sought; or other undue hardship. 



1 



1247 



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PROPOSED RULES 



(f) Any such ob je clion to a sub p oena must be se r ved on the 






place fo r such o r al argument. 

(e) Givi n g due co n side r ation to the proposal for decision and 
the exce p t i ons a n d a r guments of the p arties, the Boa r d may 
adopt the proposal l o r dec i sio n o r may modify it as the Boa r d 
may b e granted by th e Boa r d, may File a written r e sponse to the deems necessary. The decis i on r ende r ed will be a part of the 
obj e ction. — The w r itten response shall be served by the reco r d and a copy the r eof give n to all parties. Tlie decision as 



p arty who requested the sub p oena simultaneously with the filing 
of the objection with the Board. 
(g) Tlie party who r equested the su bp oena, at such time as 



r equesting pa r ty o n the objecting witness simultaneously with adopted o r modified b ecomes the "final agency decision " fo r t h e 

r ight to judicial r eview. Said decision will be rendered by the 



filing the r esponse with the Board. 
(h) Afte r rece i pt of the objection and response the r eto, if any. Boa r d w i thin 60 days of the next regula r ly scheduled meeti n g 

followi n g the o r al a r guments, if any. — If the r e a r e no o r al 



the Boa r d shall i ssue a notice to the pa r ty who requested the 



subpoena and the pa r ty challenging the subpoena, and may a r guments p r esented, th e d e 



notify any other pa r ty o r pa r ties of an o p en hea rin g, to be 



scheduled as so on as p r acti c able, at wh i ch evide n ce a n d 



testimony may be p r esented, l i mited to the n a rr o w qu e s t ions 



r aised by the objection and r es p onse, 
(i) Promptly afte r the close of such hearing, the m ajo r ity of 



the Boa r d membe r s hea ri ng the contested case will rule on the 



:hallenge and issue a w ri tten decision. A cop y of the decisio n 



will be issu e d to all parties and made a part of th e r eco r d. 
Authority G.S. 87-18: 150B-I1: 150B-.^8: I50B-39: 150B-40. 

1011 WITNESSES 

Any pa r ty may be a wit n ess and may pr ese n t wit n esses on the 



p arty's behalf at the hea r i n g. All o r al testimo n y at the hea r ing 



shall be unde r oath o r affi r mation and s h all b e r ecorded. At the 



r equest of a pa r ty o r u p o n the Boa r d's own mot i on, the p r esiding 



off 



icer may exclud e witnesses from the hea r ing room so 
" they cannot hea r the testimony of other witnesses. 



that 



cision w i ll be r endered within 60 
days of the next r egula r ly scheduled Board meeting following 
r ece i pt of the w r itten except i ons. 

Authority G.S. 87-18: ISOB-II: 150B-38: 150B-40. 

.1014 ADMINISTRATIVE HEARING PROCEDURES 

(a) The Rules establishing procedures for contested cases 
adopted by the Office ol' Administrative Hearings as contained 
in Title 26. Chapter 3 of the North Carolina Administrative Code 
are hereby incorporated by reference, including subsequent 
amendments and editions, for contested cases for which the 
Board has authority to adopt rules under G.S. 150B-38(h). 
Provided, however, that H' the case is conducted under G.S. 
150B-40(b). the presiding officer shall have the powers and 
duties given to the Chief Administrative Law Judge or the 
presiding administrative law judge in Title 26. Chapter ,3 of the 
North Carolina Administrative Code and that 26 NCAC 

.0108. 



.0107. 



.0109. 



Authority G.S. 87-18: 150B-11: 150B-38: 150B-40. 

.1013 PROPOSALS FOR DECISION 

{3) — When an admi n istrative law judge conducts a hearing 



p u r suant to G.S. 150B-40(e). a "proposal for decision" shall be Authority G.S. 87-18: 150B-38: 150B-40. 



the Office of Administrative Hearings. 26 NCAC 3 .0026. Tlie 



p arties may tile w r itten exceptions to this "p r oposal for dec i s i on" 



and submit thei r own p r oposed findings of fact and conclusions 



of law. Tlie exceptions and alternative proposals must be filed 



dec i sion" as d r afted by the administrative law judge, 
(b) A n y e xc ep tions to the procedure during th e hea ri ng, the 



3.0101(2); .0102(a)(2); .0103;.0104. 
.0125.0126..0128 .0130. Section .0200 and Section .0.300 shall 
not apply. Copies of Title 26. Chapter 3 of the North Carolina 
Administrative Code are on file in the Board's offiice and may be 
obtained at the cost of ten cents per page. 



■ ende r ed within 45 days of the hearing pursuant to the Rules of 



within ten days after the party has received the "proposal for 



handl in g of th e hea r ing by the administrative law judge, rulings 



o n e vide n ce, o r a n y other matter must be writte n a n d r efe r 



specifically to pages of the r ecord or otherwise precisely identify 



the occur re nc e to which exception is taken. — Tlie exceptions 



must be filed w i th the Board within ten days of the rece i pt of the 



p r oposal fo r decision. The w r itten exceptions should bear the .1 



SECTION .1100 -FEES 

1101 EXAMINATION FEES 

(a) An application to reissue or transfer license to a different 
corporation, partnership or individual name requires a fee of 
twenty-five dollars ($25.00). 

(b) An application to issue or transfer license to the license of 
an existing licensee requires a fee of twenty-five dollars 
($25.00). 

(c) An application for license by examination requires a fee 
of fifty thi r ty-five dollars ($50.00 ) ($35.00) for the examination 
and a fee for issuance of license as set forth in 21 NCAC 50 

102 or this Rule. 



notation : LXCEPTIONS TO THE PROCEEDINGS IN THE 
CASE OF (Name of case). 






(r ) Any party may p rese nt o r al argument to the Board upon 



re quest . — The request must be i n cluded with the w r itten 



e xceptio n s, 
(d) Upon receipt of r equest fo r fu r the r o r al a r gume n t, notice 



/ill be issued p r omptly to all parties designating the time a nd 



Authority G.S. 87-18: 87-22.1. 

SECTION .1200 - CHANGES IN BOARD RULES 

.1204 NOTICE OF RULEMAKING HEARINGS 

Upon a determination to hold a rulemaking proceeding, either 



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NORTH CAROLINA REGISTER 



January 14, 2000 



1248 



PROPOSED RULES 



in response to a petition or otherwise, the Board will give at 
notice least 30 days' notice to all inte r ested persons of a public 
hearing on the proposed rtrie: rule, consistent with G.S. 150B- 

21.2. ^ 

Autlwritx G.S. 87-18: 150B.2I.2. 

.1205 NOTICE MAILING LIST 

Any pe r son o r age nc y desiring to be placed on the mailing list 
to r the Boa r d r ule-making n otices shall file such request in 



w r iting, fu rn ish i ng his n ame a n d mai: 



3801 Wake Forest Road, Suite 201, Raleigh, No r th Ca r oli n a 
27609. — The request shall state those subject areas within the 
au t ho r ity of the Board for which notice is requested. Tlie Boa r d 
may r equi r e r easonable postage and s tati one r y costs to be paid 
by pe r sons receiving such notices. 

Authority G.S 87-18: 150B-21.1 et. seq. 



.1205 ADOPTION OF RULES 

The procedure followed by the Board in adoption of Rules 
may be found in OS, 150B, Article 2A. Part 2, Article 2A. Pa r t 
2. Chapte r 1 50B of the Gene r al Statutes, as amended from time 
to time. 

Authority G.S. 87-18: 150B-21.1 et. seq. 

.1206 ADDITIONAL INFORMATION 

Persons desiring information i n addition to that provided in an 
i nd i vidual r ule-maki n g not ice shall co n tact the Boa r d at 3801 
Wake F or est Road, Suite 201, Raleigh, North Ca r ol in a 27609. 



Any wr i tten communication shall clea r ly indicate the rule- 
making p r oceeding which is the subject of the inqui r y. 

Authority G.S. 87-18: 150B-21.2. 

.1210 WRITTEN SUBMISSIONS 

(a) Any person may file a written submission containing data, 
comments or arguments, after publication of a rulemaking notice 
and up to the day of the hearing, unless a different period has 
been prescribed in the notice or granted upon request. These 
written comments shall be sent to the Board at Box 110, 
Raleigh, North Carolina 27602. The submission should clearly 
state the rule(s) or proposed rule(s) to which the comments are 
addressed, addressed to. 

(b) Upon receipt of written comments, acknowledgment will 
be made with an assurance that the comments therein will be 
considered fully by the Board. 

Authority G.S. 87-18: 150B-21.2. 

.1212 STATEMENT OF REASONS FOR DECISION 

(a) Any interested pe r son desiring a concise statement of the 
pr incipal r easo n s fo r and against the adoption of a r ule by the 
Boa r d a n d the facto r s that led to o ve rr ul i ng the considerations 
urged agai n st its adoption, may submit a request to the 



Executive Sec r etary at the Board at Box 1 10, Raleigh, North 

Carolina 27602. 

— (b) For pu r poses of Paragraph (a ) of this Rule, an " i nt e rested 

person" shall be any person(s) whose rights, duties or privileges i 

might b e affected by the adoption of the r ule in question, or any 

group or organization of pe r sons whose r ights, duties or 

privileges might be affected by the r ule. 

— (c) The r equest must be made in w r iting and submitted prio r 

t o ado p t io n o f the r ule o r within 30 days thereafter. 



Iii't 



?oa r d at Authority- G.S. 87-18: 150B-12{e). 



.1213 RECORD OF PROCEEDINGS 

A r eco r d of all r ulemaking pr oceedings will be maintained in 
the office of the Board for as long as the r ule is in effect, and for 
five years thereafter. — Tliis reco r d will contain : — the original 
petition, the notice, all written memoranda and information 
subm i tted, and a r eco r d o r summa r y of o r al pre sentat i ons, if a n y. 
Record of r ulemaking p r oceedi n gs w il l b e available for public 
inspection du r ing the r egular office hou r s. 



Authority G.S. 87-18: 150B-12. 

CHAPTER 63 CERTIFICATION BOARD FOR 
SOCIAL WORK 



N 



otice is hereby given in accordance with G.S. 150B-21.2^ 
that the NC Social Work Certification and Licensure Board 
intends to adopt the rules cited as 21 NCAC 63 .02I1-.0213, 
.0404, .0609. amend the rules cited as.Ol 01 -.01 02, .0I04-.0W5, 
.0202. .0204. .0208-.0210. .0301-.0306. .0401. .0403. .0501. 
.0503. .0507-.0509. .0601 -.0603. .0607. .0701 -.0704: and repeal 
the rules cited as. 0103. .0201. .0205-.0207. .0402. .0604. .0801- 
.0809. .0820. Notice of Rule-making Proceedings was published 
in the Register on November 1. 1999. 



Proposed Effective Date: July 1. 2000 

A Public Hearing vr;7/ he conducted at 9:00 a.m. on February 
7. 1999 at the Archdale Building. Ground Floor Hearing Room. 
512 N. Salisbuiy Street. Raleigh. NC 27604. 

Reason for Proposed Action: Legislation enacted by the 1999 
Session of the General Assembly amended all of the statutes 
governing the occupational licensing board that regulates social 
workers, which are found at G.S. 90B. These comprehensive 
statiitoiy changes necessitated the amendment or repeal, and in 
some cases the adoption, of all the current rules governing this 
Board, which are found at 21 NCAC 63. The Board adopted 
temporaty rules effective October I. 1999. and now proposes to 
make these rules permanent. 

Comment Procedures: Any interested person may submit^ 
writtenxomment on the proposed rules by mailing the comments 



i) 



1249 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



PROPOSED RULES 



"o Gradv L Balentine, Jr., Assistant Attorney General, Health 
& Public Assistance Section, NC Department of Justice, POBox 
529. Raleigh, NC 27602-0629 by Febriiaiy 14, 2000. 






Fiscal Impact 
State Local 



Sub. 



None 
/ 



SECTION .0100 - GENERAL 

0101 PURPOSE 

It is the purpose of the Social Worker Certification and 
Licensure Act to protect the public by establishing minimum 



Tiinimal standards for qualification, training and experience for 



;hose who voluntarily seek to represent themselves to the public 

s certified social wo r ke r s, workers or licensed clinical social 

^vorkers. This act shall protect the public and promote high 



;tandards in the practice of social work. 
\uthorit}- G.S. 90B-2: S.L 1999-313. 

10102 DEFINITIONS 

Whenever used in this Chapter, the definitions set forth in 
j.S. 90B-3 are herein incorporated by reference. The following 
jefinitions apply in this Chapter: 



ill 

O) 
13} 
14} 
15) 
£6} 

01 



NCSWCLB ; this designation represents the North 
Carolina Social Work Certification and Licensure 
Board. 



CSW - this designation represents the certified social 

worker level of certification. 

CMSW ; this designation represents the certifie d 

master social worker level of certification. 

CSWM ; this designation represents the certified 

social work manager level of certification. 

LCSW ; this designation represents the licensed 

clinical social worker level of certification. 

F-LCSW ; this designation represents the 

provisionally licensed clinical social worker level of 

certification. 

Reprimand. Reprimand is a public rebuke and 

sanction by the Board for practice misconduct. A 

reprimand typically is given for less severe offenses 

and may require specific follow-up actions by the 

social worker. 

an act involving severe 



(8) Censure 



Censure is 

condemnation and a sanction by the Board for 
practice misconduct. Censuring is typically for severe 
offenses and may require specific follow-up actions 
by the social worker. 
(9) Probation. Probation is a stay of revocation or 
suspension allowing limited practice within 
preconditions established by the Board. Violations of 
these conditions can result in revocation. 

( 10) Suspension. Suspension is the withdrawal of 
privilege to practice for a specific period of time. 

(11) Revocation. Revocation is the withdrawal of 



privilege to practice as a certified or licensed social 
worker in the State of North Carolina. 

Authority G.S. 90B-3: S.L. 1999-313. 



.0103 



PROHIBITIONS 



State public agencies including those private agencies or 



ctrr 



porations — that — receive — state — f unds — snati — not — impose 
certification as a requirement fo r obtai n ing or con tin ui n g 
employment. 

Authority G.S. 90B-4: S.L 1999-313. 

.0104 ORGANIZATION OF THE BOARD 

Tlie No r th Ca r oli n a Ce r tification Board fo r Social Work is 
compose d by law of seven membe r s appointed by the governo r 
to staggered te r ms of th r ee yeai ' s. Tlie composition of the board 
shall include fou r ce r tified social worke r s (two certified social 
workers and two certified clinical social worke r s). Among the 
social workers, one member shall be employed in the field of 
social wo r k education, one member f r om the p r ivate sector and 
one member from the pu b lic sector. — Tlie th r ee remaining 
members shall be from the general public. The composition of 
the Board shall be in accordance with G.S. 90B-5. The North 
Carolina Social Work Certification and Licensure Board shall 
elect a chairperson, vice chairperson and secretary-treasurer 
from its membership to serve for a term of at least one year. The 
Board shall hold at least eight meetings each year and four 
members shall at all times constitute a quorum. Members of the 
Boa r d a r e expected to attend all meetings. 

Authority G.S. 90B-5: S.L 1999-313. 

.0105 MEETINGS 

The Board shall hold at least eight meetings each year and 
four members shall at all times constitute a quorum. Members 
of the Board are expected to attend aH meetings. Meetings of 
the boa r d. Board, formal or informal, shall be open to the public. 
Dates, times and places of meetings shall be furnished to anyone 
requesting the information and made available to the press. 

Authority G.S. 90B-6; S.L 1999-313. 

SECTION .0200 - CERTIFICATION 

.0201 DEFINITIONS 

Tlie following definitions apply to the levels of certification 
in this Sect ion: 

( 1 ) Related human se r vices fields shall include psychology, 
sociology, counseling, rehabilitation, criminal justice, 
pobttc — po licy. — pttttk — adm i nistration. — and — htrman 
r esources. 

: shall mean 3,000 clock hours of 



( 2) Two 



years ot experience ; 
wo r k o r employment fo r a fee or salary while engaged in 
the pr actice of social wo r k functions. — (1500 hours of 
wo r k fo r a fee or salary per 1 2 month pe r iod. ) Practicum 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1250 



PROPOSED RULES 



or inte r nship exper i ence taken as part of an educational 
program are not included. 
(3) Approp ri ate su p e r v i sion (clinical) si i al l — mean post- 
maste r 's o r post-doctoral expe ri e n ce di r ectly supervised 
by a ce r tified clinical social wo r ke r as defined in the Act. 



Authority G.S. 90B-7: S.L 1999-313. 

.0205 ACADEMIC QUALIFICATIONS 

The academic qualifications set forth in G.S. 90D-7 fo r 
Certified Social Workers, Certified Master Social Wo r kers, 



100 hou r s of g r oup o r individual Certifi e d Clinical Soc i al W^o r ke r s a n d Certified Social Work 



A m i n i mum 

supervision is r equi r ed. — 75 of the 100 hou r s must be 
individual supe r vision. 
(4) Cli n ical — sett i ng — shatt — mean — any — school. — hospital, 
communtiy me n tal health center, university counseling 
cente r , family or social services agency, o r supervised 
indepe n dent practice. S u ch s e tt in gs may be under publ i c 



Manage r s are herein incorpo r ated by r eference. 
Authority G.S. 90B-7: S.L. 1999-313. 
.0206 ACADEMIC EXEMPTIONS 



The — applicant — may — be — exempt — from — the — academic 



o r p ri vate aus pi ces and prov i de psychotherapeutic or qualifications required under this Chapter if he/she was engaged 
social — interventio n — for — psychosocial — pr oblems — of in the pr acti ce of social work before January 1 , 1 984 in the areas 
individuals, cou pl es, families or g r oups. 



of certified social wo r ke r s a n d certified social wo r k m anag er s . 



(5) Administrative setting shall mean a n y setting where the Tli i s exemption shall a p ply upo n passi n g the boa r d examination 



delivery of social work se r vices a r e directed, supervised, and satisfying the expe r ience requi r ements fo r ce r tification in 



pla nn ed o r coo r di n ated. Activities in clude, but are n ot 



T ties ir 
po licy — develo p ment — artd 



necessarily — l i mited — tor 

implementation, — management, — p r ogram — evaluation, 

pla nnin g and staff developme n t. 



the particula r classification. 

AnthoritvG.S. 90B-7: 90B-J0: S.L 1999-313. 



(6) Approp r iate supervision and t r aining (ma n ager) shall .0207 COMITY 



mean course wo r k o r wo r kshops in o r ganizational and If a candidate is cu r rently certified, registe r ed o r licensed as 

community se r vices o r two yea r s (3,000 hou r s) of p aid a social wo r ke r by a s im i la r boa r d in another state, the North 
employment under supervision in an administrative 
setting- 



Ca r oli n a Board may, at its disc re tion, waive the formal 



exami n ation requirements of a candidate, p r ovided that the 



Authority G.S. 90B-3; 90B-5: 90B-6; S.L 1999-313. 

.0202 APPLICATION PROCESS 

Applications, inquiries and forms are to be obtained from and 
returned to the Board. North Carolina Ce r tification Board for 
Social W^o r k. Applicants must submit only forms obtained 
directly from the board Board office. 

Authority- G.S. 90B-7: S.L 1999-313. 

.0204 REFERENCES 

The applicant wtH shall have a minimum of three references. 
Cu rr e n t membe r s of the boa r d, relatives Relatives of applicants 
or subordinates of applicants may not submit references for 
applicants. A current Board member shall not submit a 
reference for an applicant unless he/she is the applicant's current 
or only social work supervisor. In such a case the Board 
member may submit a reference, but he/she shall excuse 
himself/herself from review of that particular applicant. 



No r th Carolina Boa r d a c ce p ts the standards and qualifications 



Kl 



r equ ir ed for the practice of social wo r k in the candidate's 
lic ens e d o r certifying state as substantially e quivalent to thoseM ) 
requi r ed by the State of No r th Carolina. 



Authority G.S. 90B-8: S.L 1999-313. 

.0208 APPLICATION FEE 

An initial application fee of fifty dollars (S50) one hundred 
dollars ($100.00) will be assessed for processing each 
application. I f a n a pp licant seeks certificat io n fo r a seco n d level, 
within a 12 month pe ri od of his/lie r i ni tial application, he/she 



(1) 



(2) 



Two of the references must come from individuals 

who have been closely associated with the applicant 

in the practice of social work. 

One reference must be from one who has been or is 

currently a supervisor in a social work setting. <Tf-a 

b oa r d m e mber is the cu rr e n t supervisor o r has bee n Authority G.S. 90B-6: S.L. 1999-313. 

the o n ly su p e r viso r of an applicant, he/she should 



s h all be assessed an additional fee of twenty-five dolla r s ($25). 
Authority G.S. 90B-6.2: S.L 1999-313. 

.0209 ELIGIBILITY 

The boa r d Board shall review each application to determine 
an applicant's eligibility for a particular level of certification. An 
applicant will be notified in writing if he/she is ineligible for one 
the requested level of certification. He/she may then apply for 
another level of certification. If an applicant is found to be 
ineligible for any level of certification, he/she may not sit for the 
any examination. 



excuse h i mself/lie r self from r eview of that particular 
applicant.) 



.0210 PROVISIONAL LICENSES 

(a) The Board shall issue a provisional license certificate^ 
pu r suant to any person meeting the requirements in G.S. 90B- 



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NORTH CAROLINA REGISTER 



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14:14 m 



PROPOSED RULES 



(d) All provisional applicants for provisional licenses who 
dave not met the requirements-for of two years of supervised 
:linical social work experience shall receive on-going 
supervision appropriate supervision, as defined in Rule 
0204(a)(2) of this Section, until this requirement is satisfied. 



(b) Applications and forms are to be obtained from and 
■eturned to the No r th Ca r oli na Board for Soc i al Wo r k. Office. 

(c) An application fee of ftfty one hundred dollars ($50.00) 
f$ 100.00) will be assessed for processing each application. 



(e) The p r ovisional certificate shall be renewed eve r y six 



n onths by submission to the Boa r d of the a p p r op r iately 



: om p leted renewal and supervision fo r m 30 days p ri o r to the 
■ enewal date. Prior to engaging in the practice of clinical social 
work, applicants must demonstrate in writing to the satisfaction 



Df the Board that they have immediate access to a licensed 
nental health professional(s) who has (have) agreed to provide 



o them clinical consultation or supervision when such is needed 



;o assure that standards of clinical social work practice are 
naintained. Provisionally licensed clinical social workers shall 



mmediately notify the Board in writing of any change in such 



iccess. 



(f) All provisional licensees shall submit reports of their 
:linical social work experience and supervision on the 



ippropriate Board form(s) every six months for review and 



;valuation by the Board. 



ff) (o) Att — pr ovisional Provisional licensees ce r tified 



ipplicants who desire to obta in become Ce r tified Licensed 
linical Social Wo r ke r Workers ce r tificat i o n shall complete the 
■application process for the Licensed Ce r tified Clinical Social 
Worker classification and submit the application fee of fifty 
teHars ( $50.00) one hundred dollars ($100.00) 30 days prior to 
he expiration of the provisional license . 



\uthority G.S. 90B-6; 90B-7: S.L. 1999-313. 

0211 WORK EXPERIENCE 

(a) For the Licensed Clinical Social Worker credential: 

(1) Two years of post-MSW clinical social work 
experience shall mean 3,000 clock hours of work or 
employment for a fee or salary while engaged in the 
practice of clinical social work. The 3,000 hours shall 
be accumulated over a period of time not less than 
two years nor more than six years, with no more than 
1500 hours accumulated in any one year. Practicum 
or internship experience gained as part of any 
educational program shall not be included. 

(2) Appropriate supervision shall mean supervision in 
person by a licensed clinical social worker, as defined 
in G.S. 90B-3, of an applicant during the applicant's 
two years of post-MSW clinical social work 
experience. Appropriate supervision shall be that 
which is provided on a regular basis throughout the 
applicant's two years of experience with at least one 
hour of supervision during every 30 hours of 
experience. A minimum of 1 00 hours of individual or 
group supervision is required, of which at least 75 of 



the 100 hours shall be individual supervision, 
(b) For the Certified Social Work Manager credential: 

(1 ) Two years of post social work degree experience shall 
mean 3.000 clock hours of employment for a salary 
while engaged in administrative social work duties 
including, but not limited to. policy and budgetary 
development and implementation, supervision and 
management, program evaluation, planning, and staff 
development. Such duties shall be carried out in an 
administrative setting where social work and/or other 
mental health services are delivered. The 3.000 hours 
shall be accumulated over a period of time not less 
than two years nor more than six years, with no more 
than 1500 hours accumulated [n any one year. 
Practicum or internship experience gained as part of 
any educational program shall not be included. 

(2) Appropriate supervision shall mean supervision in 
person by a social work administrator certified by the 
Board on at least one level who has a minimum of 
five years of administrative experience in a social 
work or mental health setting. Appropriate 
supervision shall be that which is provided on a 
regular basis throughout the applicant's two years of 
administrative social work experience. A minimum 
of 100 hours of individual or group supervision is 
required, of which at least 50 of the 1 00 hours shall be 
individual supervision. 

Authority G.S. 90B-7: S.L. 1999-313. 

.0212 DUPLICATE LICENSES OR CERTIFICATES 

A duplicate certificate or license shall be issued by the Board 
to a current certificate holder or licensee upon receipt of a 
written request and payment of a twenty-five dollar '^$25. 00) fee. 

Authority G.S 90B-6.2: S.L. 1999-313. 

.0213 TEMPORARY LICENSES 

The Board may issue a temporary license pursuant to G.S. 
90B-8(b). that is valid for no more than 30 days, upon receipt of 
a twenty five dollar ($25.00) fee. 

Authorities. 90B-6.2: 90B-8; S.L. 1999-313. 

SECTION .0300 - EXAMINATIONS 

.0301 QUALIFYING EXAMINATIONS 

Tlie board shall administer to all approved applicants for 
ce r tification, a written examination at least once a year. Tlie 
exam shall be given in a r easo n able, geographic a r ea within the 
state. A Any national examination selected by the board Board, 
or any examination developed by the Board, shall serve to 
evaluate the qualifications of each applica n ts applicant for 
certification, certification or licensure. Any such examination 
shall be administered at least once a year in a reasonable 
geographic area within the State. 



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January 14, 2000 



1252 



PROPOSED RULES 



Authority G.S. 90B-6; 90B-7; 90B-8: S.L 1999-313. 

.0302 REPORTING OF SCORES 

Each applicant for certification or licensure shall he informed 
in writing whether he/she has passed the examination. If an 
applicant fails the examination, he/she shall receive his/her 
numerical score. If his/her failing score is within three points 
below the ctrt passing score he/she may have his/her test hand- 
scored within a ninety-day period, pe r iod by completing a form 
on the back of the handbook. 

Authority G.S. 90B-6: 90B-8: S.L 1999-313. 

.0303 RETAKING OF EXAMINATION 

An applicant who has not passed an examination shall be 
allowed to retake such examination upon paying the required 
examination fee fee of the cost of the examination plus forty 
dollars ($40.00). 

Authority G.S. 90B-6: S.L. 1999-313. 

.0304 CANCELLATION 

An applicant who provides written cancellation that is 
received by the Board at least 30 days before the date of 
examination will receive a refund of the examination fee. An 
applicant whose who ca n cels i n w r iti n g written cancellation is 
received by the Board less than 30 days before the date of 
examination shall not receive a refund of the examination fee. 
However, he/she may apply and to sit for another examination 
within 12 months of the missed examination without incurring 
any additional examination fee. 

An applicant who fails to ca n c e l in w r iting less than 30 days 
befo r e the examination or who fails to appear for an exam i natio n 
may apply and sit fo r anothe r exami n atio n w i th i n 1 3 months of 
th e missed examination upo n p ayme n t of fifty dollars ($50) 
exam i nation fee. Such fee shall be paid not later than 60 days 
befo r e th e scheduled examination. An applicant whose written 
cancellation is received by the Board on or after the date of the 
examination, or an applicant who fails to appear for an 
examination, shall be required to reapply and pay another 
examination fee. 

Authority G.S. 90B-6: S.L. 1999-313. 

.0305 REVIEW OF EXAMINATIONS BY 
UNSUCCESSFUL APPLICANTS 

(a) An applicant who has not successfully passed the 
certification or licensure exam may review his/her test booklet 
together with the appropriate answer sheet. In order to do so, 
the cand i date applicant must: 

( 1 ) Make make a written request for review of his/her 
examination directly to the b oa r d. Board; 

(2) The candidate may review the exam in the Office of 
the Board and in the presence of a board member. 
member; 

(3) The candidate may not take ntrte^ notes or photocopy 



o r ask questions r egarding the any examination 
mate r ials, materials; 

(4) Tlie applicant must sign a statement of confidentiality 
regarding the contents of the exam; in o r der to review i 
the examination booklet. 

f5) A candidate's sco r es will not be cha n ged. — Any 
questions — wifl — be — transmitted — to — the — n ational 
exam i nation se r vice for review. The No r th Carolina 
Boa r d has the r es p onsibility of obta in i n g a co p y of the 
examination together with the cand i date's answe r 
s heet a n d the scoring key. The board shall main t a i n 
st r ict security. 

(b) The Board has the responsibility of obtaining a copy of 
the examination together with the applicant's answer sheet and 
the scoring key. The Board shall maintain strict security of all 
testing materials. 

(c) An applicant's score will not be changed by the Board, 
and any questions about the score will be transmitted to the 
national examination service for review. 



Authority G.S. 90B-6: S.L. 1999-313. 

.0306 EXAMINATION FEES 

ftc) An examination fee of fifteen dolla r s ($15.00 ) forty 
dollars ($40.00) plus the cost of the examination to the Board 
shall be assessed for administration and processing of any 
written examination. 

(b) An applicant who fails to ap p ear fo r an exami n ation shall 
b e assessed a fee of fifteen dollars ($15.00) plus the cost of thq 
e xaminatio n to the Board in order to take the examination at a 
late r date. 

Authority G.S. 90B-6.2; S.L. 1999-313. 

SECTION .0400 - RENEWAL OF CERTIFICATION 

.0401 CONTINUING EDUCATION REQUIREMENTS 

(a) Continuing education forcertification or licensure renewal 
is required to maintain professional knowledge and technical 
competency. Ce r tification shall be afforded o n a two year basis. 
Howeve r , ce r tification shall expi r e on the second Ju n e 30 afte r 
certificatio n has bee n i ssued. Renewal of certification shall be 
based on 40 hou r s of r e n ewal credits within the two yea r cycle. 
Renewal of certification or licensure requires 40 hours of 
continuing education credits approved by the Board within each 
two year renewal cycle. However, if a certification or licensure 
is for less than a full two year two-year period, then r en e wal 
shall be acco r ded based o n 30 hours of ren ewal c r e dits: 
continuing education credits are required. One unit of credit is 
equal to one contact hour. One academic course s e meste r hou r 
semester-hour of credit shall be equivalent is equal to 1 5 clock 
hours. Credit for auditing an academic course shall be for actual 
clock hours attended during which instruction was given and 
shall not exceed the academic credit allowed. Continuingi 
education activities may include: ' 

(1). academic social work courses taken for credit or 



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audit; 

(2) formal agency-based staff development, seminars, 
institutes, workshops, mini courses or conferences 
oriented to social work practice, values, skills and 
knowledge; 

(3) cross-disciplinary offerings from medicine, law and 
the behavioral/social sciences or other disciplines, if 
such offerings are clearly related to social work 
practice, values, skills and knowledge; 

(4) self-directed learning projects with prior approval by 
the Board. The maximum maximal continuint; 
education credit granted numbe r for such projects is 
20 clock hours ger renewal period . A r enewal u n it 
Credit shall not be granted for for: 

(A) identical prograins completed within the same 
ce r tificatio n renewal pe ri od, period; 

(B) job o r ientat i o n orientation; or 

(C) on the job t r aini n g; a n d, training. 

(b) (5) dtirrng During each renewal period all certified and 
icensed social workers shall engage in a minimum of two-hou r s 
wo hours of continuing education focused on ethics. 



\utlumty G.S. 90B-6: 90B-9: S.L 1999-313. 

0402 FORMS 

(a) Documentation for the completion of continuing educatio n 



c r edits a n d biennial renewal shall b e completed on the No r th 



Ca r olina Ce r tification for Social Worke r s bien n ial r enewal a n d 



i 



on tinui n g education reporting form. — Tlie form must be the 



jr iginal and must be completed and signed, 
(b) Each r e n ewal applicant is responsible for com p leting the 



equi r ed fo r m. If an organization maintains such records the 



i pp licant must assure the fo r m is com p leted and com p i 



com p nes w r 



th 



til a pp licable r ules and regul a ti o ns. The fo r m must be su b mitted 



It the time the applicant files for r e newal of c e r tification. 
Authority G.S. 90B-6: 90B-9: S.L. 1999-313. 
0403 RENEWAL FEES 



(a) A biennial renewal fee of fifty dolla r s ($50.00) shall be 
is se s sed Fees for renewal of certificates or licenses which are 



Jue for renewal on or before June 30. 2000 shall be as follows: 



For Certified Social Workers (CSWs) the renewal 
fee shall be fifty-five dollars ($55.00). 
For Certified Master Social Workers (CMSWs) the 
renewal fee shall be sixtv-five dollars ($65.00). 
For Licensed Clinical Social Workers (LCSW's) the 
renewal fee shall be one hundred dollars ($100.00). 
For Certified Social Work Managers (CSWM's) the 
renewal fee shall be one hundred dollars ($100.00). 
(b) Fees for renewal of certificates or licenses which are due 
br renewal after June 30, 2000 shall be as follows: 



liJ 

13] 
(4) 



OJ For Certified Social Workers (CSWs) the renewal 

fee shall be sixty dollars ($60.00). 
12] For Certified Master Social Workers (CMSWs) the 

renewal fee shall be seventy-five dollars ($75.00). 
13] For Licensed Clinical Social Workers (LCSWs) the 



renewal fee shall he one hundred twenty-five dollars 

($125.00). 
14] For Certified Social Work Managers (CSWM's) the 

renewal fee shall be one hundred twenty-five dollars 

($125.00). 
(b) Ic] Persons who fail to apply for renewal prio r to the 
expiration date shall be assessed a minimum late renewal fee of 
fifteen dollars ($15.00) whose applications for renewal are 
received by the Board after the renewal date of their certificate 
or license, but no later than 60 days after the renewal date, shall 
be assessed a late renewal fee of fifty dollars ($50.00) in 
addition to any other applicable fees. 

Authority G.S. 90B-6.2; 90B-9(b): S.L 1999-313. 

.0404 REINSTATEMENT 

(a) Persons whose certificate or license is suspended for 
failure to renew, pursuant to G.S. 90B-9(c), are prohibited from 
engaging in the practice of clinical social work and from holding 
themselves out as certified or licensed by the Board until they 
apply for and receive reinstatement of their certificate or license 
by the Board. 

(b) Persons who apply for reinstatement after temporary 
retirement from the practice of social work, pursuant to G.S. 
90B-9(d), or after their certificate or license was suspended for 
failure to renew, shall be assessed a reinstatement fee of one 
hundred dollars ($100.00) in addition to any other applicable 
fees. 



Authority G.S. 90B-6.2: 90B-9: S.L 1999-313. 

SECTION .0500 - ETHICAL GUIDELINES 

.0501 PURPOSE AND SCOPE 

(a) Ethical principles affecting the practice of social work are 
rooted in the basic values of society and the social work 
profession. The principal objective of the profession of social 
work is to enhance the dignity and well-being of each individual 
who seeks its services. It does so through the use of social work 
theory and intervention methods including psychotherapy. 

(b) The primary goal of this code is to set forth principles to 
guide social workers' conduct in their profession. Violation of 
these standards may be considered gross unprofessional conduct 
and may constitute dishonest practice or incompetence in the 
practice of social work. Such violations may result in 
disciplinary action by the Board. 

(c) The following ethical principles serve as a standard for 
social workers in their various professional roles, relationships 
and responsibilities. Social workers shall consider all the 
principles in the code that bear upon any situation on which 
ethical judgment is to be exercised, and to select a course of 
action consistent with the spirit as well as the letter of this code. 

(d) Upon approval of cert i fication, certification or licensure , 
each applicant shall review the these Ethical Guidelines Code of 
Ethics and return a signed statement to the Board agreeing to 
abide by these standards. 



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1254 



PROPOSED RULES 



Authority G.S. 90B-6: 90B-II:S.L. 1999-313. 

.0503 GENERAL PROFESSIONAL 
RESPONSIBILITIES 

(a) Social workers shall practice only within their sphere of 
competence. They shall accurately represent their abilities, 
education, training, credentials, and experience. They shall 
engage in continuing professional education to maintain and 
enhance their competence. 

(b) As employees of institutions or agencies, social workers 
are responsible for remaining alert to and attempting to moderate 
institutional pressures or policies that conflict with the standards 
of their profession. If such conflict arises, social workers" 
responsibility shall be to uphold the ethical standards of their 
profession. 

(c) Social workers shall not, in any of their capacities, 
practice, condone, facilitate or collaborate with any form of 
discrimination on the basis of race, sex, sexual orientation, age, 
religion, socioeconomic status, or national origin. 

(d) Social workers shall practice their profession in 
compliance with legal standards. 

(e) Social workers shall not engage in settlement agreements 
that preclude reporting of ethical misconduct to the Board. 

Authority G.S. 90B-6; 908-11: S.L. 1999-313. 

.0507 CONFIDENTIALITY AND RECORD KEEPING 

Social workers shall have a primary obligation to protect the 
client's right to confidentiality as established by law and 
professional standards of practice. 

(1) Social workers reveal confidential information to 
others only with the informed consent of the client, 
except in those circumstances in which not to do so 
would violate other laws or would result in clear and 
imminent danger to the client or others. Unless 
specifically contraindicated by such situations, clients 
shall be informed and written consent shall be 
obtained from the clie n t client, or their legally 
authorized representative, before confidential 
information is revealed. 

(2) When confidential information is used for the purpose 
of professional education, research, consultation, etc., 
the identity of the client shall be concealed. 
Presentations shall be limited to material necessary 
for the professional purpose. 

(3) Social workers shall maintain records adequate to 
provide proper diagnosis and treatment and to fulfill 
other professional responsibilities. 

Authority G.S. 90B-6: 90B-1I: S.L. 1999-313. 

.0508 PURSUIT OF RESEARCH AND SCHOLARLY 
ACTIVITIES 

In planning, conducting and reporting a study, the investigator 
has the responsibility to make a careful evaluation of its ethical 
acceptability, taking into account the following additional 



principles for research with human subjects. To the extent that 
this appraisal, weighing scientific and humane values, suggests 
a compromise of ethical principles, the investigator shall seek 
advice to protect the right of the research participants. 

(1) Social workers shall obtain appropriate authority to 
carry out the research and proper credit shall be given 
for the research conducted. 

(2) An agreement shall be established between the 
investigator and the research participant clarifying 
their roles and responsibilities. 

(3) The rights of an individual to decline to participate in 
or withdraw from the research shall be respected and 
the participant shall not be penalized for such action. 

(4) The investigator shall inform the participant of all the 
features of the research that would affect his/her 
participation in the study. 

(5) Information obtained about the participant during the 
course of the study shall be confidential unless 
informed consent for release of information is 
obtained in advance. 

(6) Research findings shall be presented accurately. 
Social workers shall not distort or misrepresent 
research. 

Authority G.S. 90B-6; 90B-11: S.L. 1999-313. 



\) 



.0509 PUBLIC STATEMENTS 

Public statements, announcements of services and 
promotional activities of social workers serve the purpose offl] 
providing sufficient information to aid consumers in making ™^* 
informed judgments and choices. Social workers shall state 
accurately, objectively and without misrepresentation their 
professional qualifications, affiliations and functions as well as 
those of the institutions or organizations with which they or their 
statement may be associated. They shall correct 
misrepresentations of by others with respect to these matters. 



( 1 ) In announcing availability for professional services, 
a social worker shall use his or her name, type and 
level of certification and licensure; and may use 
highest relevant academic degree from an accredited 
institution; specialized post-graduate training; address 
and telephone number; office hours; type of services 
provided; appropriate fee information; foreign 
languages spoken; and policy with regard to third- 
party payments. 

(2) Social workers shall not offer to perform any services 
beyond the scope permitted by law or beyond the 
scope of their competence. They shall not engage in 
any form of advertising which is false, fraudulent, 
deceptive, or misleading. They shall neither solicit 
nor use recommendations or testimonials from clients. 

(3) Social workers shall respect the rights and reputations 
of professional organizations with which they are 
affiliated. They shall not falsely imply sponsorship ori 
certification by such an organization. When making 
public statements, the social worker shall make clear 



S 



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PROPOSED RULES 



V 



which are personal opinions and which are authorized 
statements on behalf of the organization. 

litlwrhx G.S 90B-6: 90B-1J: S.L 1999-313. 

SECTION .0600 - DISCIPLINARY PROCEDURES 

DISCIPLINARY 



L0601 GROUNDS FOR 
PROCEDURES 

In addition to the conduct set forth in G.S. 90B- 1 1 . the hoard 
may deny, suspend or revok e a certification take disciplinary 
action upon the following grounds: 

( 1 ) offering a check to the board in payment of required 

fees which is returned unpaid; 

obtaining or attempting to obtain compensation by 

fraud or deceit; 

violation of any order of the North Carolina Social 

Work Ce r tificatio n Board; 

failure to possess exhibit truth, honesty and integrity 

sufficient to be entitled to the high regard and 

confidence of the public. 



(2) 
(3) 
(4) 



\iitlwrir}- G.S. 90B-2: 908-11: S.L 1999-313. 

0602 INVESTIGATION 

(a) The contents and ma nn e r of se r vice of notice of hea r ing in 



1 co nt ested case shall be as p r esc r ibed in G.S. l50D-.'^8(b) and 



I 






(a) Upon receipt of a complaint, the Board shall notify the 
ocial worker against whom the complaint was filed, noting the 



-eport of a violation and the specific ethical standard brought 



nto question. 



(b) A n y pa r ty who has been se r ved with n otice of hea r i n g m ay 



lie a w r itte n r espo n se as p r esc ri bed in G.S. l50B-."<8(d). 

(b) Upon receipt of a complaint, or upon its own motion, the 
Board, its staff, or designee(s) may investigate whether a person 



■•ertified or licensed by the Board has violated any provision of 



.8. 90B or these Rules. 



(c) The complainant and social worker against whom a 
complaint was filed shall be notified in writing of the Board's 



iecision as to whether an investigation is warranted. 



(d) Any Board member who conducts the investigation of a 
pecific case shall not participate in the Board's adjudication of 



hat case. 



\iithorin G.S. 90B-6: 90B-11: S.L.1999-313. 



0603 



NOTICE OF CHARGES AND HEARING 



(a) Contested Cases. Disci p lina r y p r oceedings to enforce the 



p r ovisions of G.S. 90B-11 and Rule 21 NCAC 63 .0601 a r e 



ie emed to be "contested cases" withi n the mea n i n g of G.S. 



I50D-2, and a n y person subjected to such p r oceedings shall be 



u 



;iven notice and the o p po r tunity to be heard, 
(b) Emergency Ce r tificate Suspension. — Nothing within 



'a r ag r aph (a) of this Rule shall ab r idge the r ight of the Boa r d to 
ake eme r gency action to sum m a r ily sus p end a ce r tificate p r io r 



to hearing pursuant to G.S. 150D-3(c). 

If an investigation produces any credible evidence indicating 
a violation of G.S. 90 or these rules the Board may initiate 
disciplinary proceedings. Disciplinary proceedings conducted 
by: the Board are governed by G.S. 90. Prior to any Board 
action, written notice outlining the particular statutes and rules 
involved, the alleged facts, and the date, location and nature of 
any hearing shall be sent to the social worker involved and the 
complainant. 

Authority G.S. 90B-6: 90B-11: 150B-38: S.L 1999-313. 

.0604 LOCATION OF HEARING 

The location of the hearing in a contested case shall be as 
prescribed in G.S. 15QB-38(c). 

Aiithorit}' G.S. 90B-6(h): 150B-9; S.L 1999-313. 

.0607 CONDUCT OF HEARING 

(a) Gene r al II Disciplinary hearings in contested cases shall be 
conducted by a majority of the Board. The Chairperson shall 
serve as presiding officer unless he or she is absent or 
disqualified, in which case the Vice-chairperson shall preside. 
Hearings shall be conducted as prescribed by G.S. 150B-40. 

(b) Disqualification. An affidavit seeking disqualification of 
any Board member, if filed in good faith and in a timely manner, 
will be ruled on by the remaining members of the Board. An 
affidavit is considered timely if it is filed: 

( 1 ) Prior to the hearing; or 

(2) As soon after the commencement of the hearing as the 
affiant becomes aware of the facts which give rise to 
his belief that a Board member should be disqualified. 

(c) Evidence. The admission of evidence in a hearing on a 
contested case shall be as prescribed in G.S. 150B-41. 

Aiahorit}' G.S. 90B-6(li): 150B-40:S.L 1999-313. 

.0609 REPORTING OF DISCIPLINARY ACTIONS 

The Board shall report al] disciplinary actions specified in 
G.S. 90B-1 1 through the Disciplinary Action Reporting System 
(PARS), the Federal Data Bank, and may report them to any 
requesting public or private entity. Disciplinary actions do not 
include complaints. 

Aiahorit}- G.S. 90B-6(h): 908-11: S.L 1999-313. 

SECTION .0700 - ADOPTION OF RULES 

.0701 PETITIONS FOR ADOPTION OF RULES 

(a) The procedure for petitioning the Board to adopt, amend, 
or repeal a rule is governed by G.S. I50B-I 6 G.S. 150B-20 . 

(b) Submission. Rule-making petitions shall be sent to the 
secretary of the Board. No special form is required, but the 
petitioner shall state his or her name and address. Beyond the 
requirement that the petitioner submit the proposed te.xt of any 
requested rule change and a statement of the effect of the 



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1256 



PROPOSED RULES 



requested chanae. The r e there are no minimum mandatory 
eontents of a p etit i on, hut petition. However, the Board 
considers the following information to be pertinent: 

fH a d r aft of the pr o p osed rule: 

(^ £!J the reason for its proposal; 

(tV^ the effect of the proposed rule on existing r ules o r 

decisions; 
(4) £2J data supporting the proposed rule; 
{5) Q} practices likely to be affected by the proposed rule; 
(fr) yj persons likely to be affected by the proposed rule. 

(c) Disposition. The secretary shall review the petition and 
develop a recommendation as to whether the petitioner's 
proposed rule should be rejected or implemented. The secretary 
shall present the petition and his or her recommendation to the 
Board at its next regular meeting following receipt of the 
petition, and the Board shall render its decision to either deny 
the petition or initiate rule-making. The Board shall notify the 
petitioner of its decision in writing within the 1 20-day period set 
by G . S. 150B-1 6 G.S. 1 50B-20 . 

Authority G.S. 90B-6(h): I50B-20: S.L 1999-313. 

.0702 PROCEDURE FOR ADOPTION OF RULES 

(a) General. The procedure for the adoption, amendment or 
repeal of rules is governed by G.S. 150B-12 . Part Z, Article 2A 
of G.S. 150B. 

(b) Notice of Rule-Making. In addition to the mandatory 
publication of notice in the North Carolina Register, the Board, 
in its discretion, may also publish notice through its newsletter 
to certified and licensed persons or by separate mailing. Any 
person who wishes to receive individual notice shall file a 
written request with the secretary and shall be responsible for the 
cost of mailing said notice. 

(c) Public Hearing. Any public rule-making hearing required 
by G.S. 1 500- 12 G.S. 15()B-21.2 shall be conducted by the 
chairperson of the Board or by any person he the chair may 
delegate. The presiding officer shall have complete control of 
the hearing and shall conduct the hearing so as to provide a 
reasonable opportunity for any interested person to present 
views, data and comments: 

(1) Oral presentations shall not exceed 15 minutes unless 
the presiding officer, in his or her discretion, 
prescribes a greater time limit. 

(2) Written presentations shall be acknowledged by the 
presiding officer and shall be given the same 
consideration as oral presentations. 

Aitthoiitx G.S. 90B-6{h): 1508-21 .2: S.L. 1999-313. 

.0703 TEMPORARY RULES 

The power of the Board to adopt temporary rules and the 
procedure by which such rules are put into effect are governed 
by G.S. 1500-13 G.S. 150B-21.1. 

AiithoiitxG.S. 90B-6(li): I50B-2I.1 : S.L. 1999-313. 



(2) 
(3) 

(4) 



.0704 DECLAR.\TORY RULINGS 

(a) General. The issuance ofdeclaratory rulings by the Board 
is governed by G.S. 1500-17 G.S. 150B-4 . . 

(b) Request for Declaratory Ruling; Contents. A request foil 
a declaratory ruling shall be in writing and addressed to the 
secretary secretary of the Board. The request shall contain the 
following information: 

( 1 ) The name and address of the person making the 
request; 

The statute or rule to which the request relates; 
A concise statement of the manner in which the 
person has been aggrieved by the statute or rule. 
A statement as to whether a hearing is desired, and if 
desired, the reason therefore. 

(c) Refusal to Issue Ruling. The Board shall ordinarily refuse 
to issue a declaratory ruling under the following circumstances: 

(1) When the Board has already made a controlling 
decision on substantially similar facts in a contested 
case; 

(2) When the facts underlying the request for a ruling 
were specifically considered at the time of the 
adoption of the rule in question; 

(3) When the subject matter of the request is involved in 
pending litigation in North Carolina. 

Authority G.S. 90B-6(h): 150B-4: S.L. 1999-313. 

SECTION .0800 - DISCIPLINARY PROCEDURES 

.0801 REPORTING COMPLAINTS 

(a) All complainants shall be sent (if n ame a n d add r ess a r e 
a v ailable) a copy of the state's code of ethics and disciplinary 
procedu ie s, iufoi i ning them of the ir options for reporting an 
ethical violation. 

(b) The r e shall be two procedures fo r r e p o r ting violations : 
Hi Info r mal Reporting Procedu r e : 

tA) — A n yo n e — may — a n o n ymously — or — othe r wise 
commu n ica t e a sus p ected v i olatio n on a n 
informal "report only" basis. Th i s r e p ort shall 
b e submit t ed in w r it i ng. 

t&) Afte r r eceiving an informal written complaint, 
the Boa r d shall contact the social wo r ke r 



i) 



; of a violation a n d 



involved, note the r epo r ting ot a ' 

outline the specific ethical sta n da r d b r ought to 

q ue s tion. 

tG) — Reco r d of the complaint and all subsequent 
actions — shaH — be — r etain e d — rn — a — sepa r ate 
administrative file and shall not be conside r ed 
disc i plinary actions, and shall not be a part of 
licensee's file. 

i&) — Depending on the number of p r ior compla i nts 

w ith i n a three-year p e r iod, specific follow-up 

i nte r ventions shall be initiated. Complaints do 

not hav e to involve the sam e e thical stand aixhi 

(t) — First Compla in t. — Tlie social wo r ke r* 

shall be directly contacted by phone by 



1257 



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January 14, 2000 



14:14 



PROPOSED RULES 



a member of the Board, with a follow- 
up letter. Tlie specific ethical violations 



.0802 CONFIDENTIALITY 

Eve r y communication, oral or written, made by or on behalf 



raised by complainant shall be detailed. of any person o r e n t i ty to the No r th Carolina Ce r tification Boa r d 
The soc i al wo r ke r s h all be e n cou r age d for Social Work o r to any pe r so n des i gnated by the Board to 
to explo r e issues that may have led to investigate matters relating to disciplinary issues, whether by 

w ay of r e p ort, complaint, or statement, shall be treated in a 
co n fident i al manner, within the provision of the Public Records 
ActG.S. 132. 



the complaint, professio n al p r actices, 
and social work ethical standards, and to 
initiate corrective action if necessary. 
in) S e cond Complaint. — Th e p r ocedu re in 



Su bp a r t (b)( 1 )(D)( i ) of this Rule shall b e Authority G.S. 90B-6; 908-11; S.L. 1999-313. 
followed, and the social worker shall be 
encouraged to voluntaiMly develop an 
"intervention team" of two ce r tified 



.0803 INVESTIGATION 

(a) Upo n recei p t of a fo r mal complaint, o r upon the Board's 
social work colleagues. Tliis team shall own initiative, the No r th Ca r oli n a Ce r tification Boai " d for Social 
work — wttb — the — social — worke r — to Work, its staff, o r desig n ee(s) may i n vestigate whether a 
informally — address — complaint certified — social — wo r ke r — has — violated — the — Social — Work 

Ce r tification Act o r the Administ r ative Code of the Board. 



m 



implications, — potential — professional 
liabilities, client impact, and possible 
co rr ective actions. A plan of action and 
follow-up r epo r ts shall be submitted to 
the Boa r d. 
trri^ — Third Compla int. — Tlie procedures in 
Sub p a r ts (b)(l)(D)(i) and (ii) of this 
Rule a r e followed, and the social worker 
will r eceive st r ong r ecommendation to 
e s tabl i s h — supe r vision — or — therapeutic 
inte r ventio n — or — both — for — possible 

tbr) Fourth Complaint. Tlie Boai ' d shall call 

fo r whatever investigation is necessary 
and may call for either an informal 
conference or hearing- 
Fo r mal Repo r ting Procedure : 
(A) Th e complainant shall submit a formal writt e n 

complaint on the Board's form outlining the 

specific violation and identifying the social 

worker involved. 
t©^ — Tlie Board shall acknowledge r ecei p t of the 

complaint and initiate an invest i gat i o n . 
(Cj — Tlie Board shall contact the social wo r ke r 

involved, note the repo r t i ng of a violation and 

outline the specific ethical standa r d b r oug h t to 

question. 
iD) — Based on the investigation, if the r e i s c r edible 



(b) A n y boa r d membe r engaged i n the i n vestigation of a 
s p ec ifi c case shall not p a r tici p ate i n the Boa r d's adjudication of 
that case. 



Authority G.S. 90B-6: 90B-11: S.L. 1999-313. 

.0804 NOTICE OF HEARING AND CHARGES 

If an investigation produces any c r edible evidence to support 
the charge, a notice outlining the charges, date of p r o p osed 
hearing, and other information (per G.S. 150B-38) shall be sent 
to the social worker. Tlie social worker shall have the right to 
file a writ t en response (per G.S. 150B-38). 

Authority G.S. 90B-6; 90B-11; S.L 1999-313. 

.0805 INFORMAL CONFERENCE 

The Boa r d may meet in informal closed session with a social 
wo r ke r who seeks o r ag r ees to such a conference in lieu of a 
fo r mal discipli n ary hea r ing. D i sci p linary action taken against a 
licensee as a r esult of an info r mal closed sessio n conference and 
ag r eed to by the Board and the social worke r shall be binding 
a n d a matte r of publ i c r eco r d. 

Authorities. 90B-6: 90B-11: S.L 1999-313. 



.0806 HEARINGS 

Gene r al hearings shall be conducted by a majority of the 



evidence supporting the cha r ges, a hea r i n g Boa r d. Tlie Chairperson shall serve as p r esid i ng officer unless 

he/she is absent or disqualified, in wh i ch case the Vice- 
Chai r pe r son, or designee, shall p r es i de. 



shall be scheduled. If evidence is not c r edible 
the Board may at its discretion pu r sue i nfo r mal 
pr ocedu r e s. 

fE) Tlie disci p lina r y action hearing will follow the 

administrative procedu r es i n Rule .0602 of this 
Chapte r and G.S. I50B. 

(F) The complainant and social wo r ke r shall be info r med 

of the Board's final filing on the com p lai n t a n d 
su b sequent disciplina r y actions. 

huthoritx G.S. 90B-6: 90B-11: S.L. 1999-313. 



Authority G.S. 90B-6: 90B-11: S.L 1999-313. 
.0807 DECISION OF THE BOARD 



Th e Board shall notify all parti e s of its 
manner p r esc r ibed b y G.S. 150B-42. 



final decision in the 



Authority' G.S. 90B-6: 90B-1I: S.L 1999-313. 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1258 



PROPOSED RULES 



.0808 SUMMARY SUSPENSION 

Rega r dless of the status of the complaint, the Board may 
summarily sus p end a social wo r ker's certification according to 
the provisions of G.S. 150D-3. — If the Board Chairperson 
be li e v es such prompt action is required, the Board may 
summarily suspend a license by means of a vote conducted by 



telephi 



i none, tormal meeting, or correspondence, r r oceedmgs lor 
a formal hearing s h all be instituted simulta n eously with 
summary sus p ens i on, with a hearing date not to exceed 3 day s 
f r om the date of sus p ension. 

Authority G.S. 90B-6: 90B-11: S.L. 1999-313. 

.0809 THE PUBLIC RECORD 

Tlie Boa r d shall r epo r t all disciplina r y actions through the 
Disciplina r y Actio n Repo r ting System (BARS), the Federal 
Data Bank, and may r eport them to any requesting publ i c o r 
p r ivate entity. Disciplinary actio n s do n o t i n clude complaints. 

Authority G.S. 90B-6: 908-11: S.L. 1999-313. 

.0820 DISCIPLINARY ACTIONS 

Board disciplina r y actions may include the following : 



t+i Lette r s of Concern. — The Board : 



issue a letter of 



icern. — ine uoara may 
conce r n to a certified social wo r ke r stati n g that the Boa r d 
has noted misconduct b y the social wo r ke r. 
fS) Exami n ation. Tl i e Board may require a social worker 
to b e examined orally or i n w r iting r ega r ding his/he r 
social work skills a n d knowledge. 

(3) Re pr imand. — Reprimand is a public rebuke and 
sanction by the Board for practice misco n duct. — A 
reprimand ty p ically is given fo r less seve r e offenses 
an d may r equi r e specific follow-up actions by the 
social wo r ke r. 

(4) Censure. Censure i s an act i n volving seve r e 

condemnatio n a n d a sa n ction by t h e Board for 
pr actice misconduct. Censuring is typically for severe 
offenses and may require specific follow-u p actions 
by the social worke r . 

t5) P r obation. — P r obation is a stay of revocation o r 
sus p e n sio n — allowing — limited — practice — wrthrn 
pr eco n ditions established by the Boa r d. Violations of 
these condit i ons can r esult in r evocation. 



f^ 



suspe n sio n . Sus p e n sio n — ts — the — withdrawal — of 

p r ivilege to practice for a specific period of time. 

(7-) Revocatio n. Revocation — ts — the — w i thd r awal — of 

pr ivilege to practice as a ce r tified social wo r ke r in the 
State of North C a r o lin a . 



Authority G.S. 90B-6: 90B-11: S.L. 1999-313. 

CHAPTER 68 - CERTIFICATION BOARD FOR 
SUBSTANCE ABUSE PROFESSIONALS 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the NC Substance Abuse Professional Certification 
Board intends to amend the rules cited as 21 NCAC 68 .0101, ^ 
.0503. .0507. .0509. .0511, .0601, .0706. Notice of Rule-makingM 
Proceedings was published in the Register on November 15, 
1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 10:00 a.m. on February 
18. 2000 at the Holiday Inn, 2444 Maple Avenue, Burlington, 
NC 27216. (See the Maitre d'at the hotel for room assignment. ) 

Reason for Proposed Action: 

21 NCAC 68 .0101 - Deleting definition that is not applicable. 

Adding clarifying definitions. 

21 NCAC 68 .0503 - Revision of terminology to include new 

credentials issued by the Board and clarification of provision in 

Rule. 

21 NCAC 68 .0507 - Revision of tenninology to include new 

credentials. 

21 NCAC 68 .0509 - Clarification and refinement of the Rule. 

21 NCAC 68 .0511 - Revision of terminology to include new 

credentials. 

21 NCAC 68 .0601 - Revision of terminology to include new 

credentials and refinement of Rule. 

21 NCAC 68 .0706 - To make Rule more properly reflect 

statutes. 



Comment Procedures: Tlie public is invited to attend the 
public hearing and submit comments. Written comments may be 
submitted through Februaiy 18, 2000 to Ms. Ann Christian, 
Rule-making Coordinator, NC Substance Abuse Professional 
Certification Board, PO Box 2455, Raleigh, NC 27602. 



Fiscal Impact 
State Local 



Sub. None 
/ 



SECTION .0100 - GENERAL 

.0101 DEFINITIONS 

As used in the General Statutes or this Chapter, the following 
terms have the following meaning: 

(1 ) "Approved Supervisor" means a person who fulfills 
or is in the process of fulfilling the requirements for 
this Board designation pursuant to Rule .021 1 of this 
Chapter by completing its academic, didactic and 
experiential requirements. 

(2) "Assessment" means identifying and evaluating an 
individual's strengths, weaknesses, problems and 
needs for the development of a treatment plan for 
alcohol and drug abuse. 

(3) "Board" means the North Carolina Substance Abusej 
Professional Certification Board. 

(4)' "Complainant" means a person who has tiled a 



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January 14, 2000 



14:14 



PROPOSED RULES 



(5) 



(6) 



(7) 



(8) 

m 



(16) 



(17) 



complaint pursuant to these Rules. 

"Consultation" means a meeting for discussion, 

decision-making and planning with other service 

providers for the purpose of providing substance 

abuse services. 

"Crisis" means a decisive, crucial event in the course 

of treatment that threatens, either directly or indirectly 

related to alcohol or drug use, to compromise or 

destroy the rehabilitation effort. 

"Deemed Status Group" means those persons who are 

credentialed as a clinical addictions specialist because 

of their membership in a deemed status discipline. 

"Full Time" means 2,000 hours per year. 



'Hea r ing Committee" means a comm i lle t: 



iscd 



iittee means a commnie e comp r ise 
of th r ee members of the Boa r d appo i nt e d by th e 
P r es i dent — to — hear — an — appeal — from — the — Ethics 
Committee. 

"Letter of Reference" means a letter that recommends 
a person for certification. 

"Membership In Good Standing" means a members 
certification is not in a state of revocation, lapse, or 
suspension. However, an individual whose 
certification is suspended and the suspension is 
stayed is a member in good standing during the period 
of the stay. 

"Passing score" means the score set by the entity 
administering the exam. 
"President" means the President of the Board. 
"Referral" means identifying the needs of an 
individual that cannot be met by the counselor or 
agency and assisting the individual to utilize the 
support systems and community resources available. 
"Reprimand" means a formal written warning from 
the Board to a person making application for 
certification by the Board or certified by the Board. 
"Respondent" means a person who is making 
application for certification by the Board or is 
certified by the Board against whom a complaint has 
been filed. 

"Sexual activity" means: 

(a) Contact between the penis and the vulva or the 
penis and the anus; 

Contact between the mouth and the penis, the 
mouth and the vulva, or the mouth and the 
anus; or 

The penetration, however sliiiht. of the anal or 

genital opening of another by a hand or finger 

or by any object with an intent to abuse. 

humiliate, harass, degrade, or arouse or gratify 

the sexual desire of any person. 

"Sexual Contact" means the intentional touching. 

either directly or indirectly, ot' the genitalia, anus. 

groin, breast, inner thigh, or buttocks of any person 

with an intent to abuse, humiliate, harass, degrcde. or 

arouse or gratify the sexual desire ol' any person. 

"Substance Abuse Counseling Experience" means 

approved supervised experience that may be full time 



ib] 



ic] 



or part-time, paid or voluntary, and must include all of 
the 12 core functions (Rule .0205 of this Chapter) as 
documented by a job description and supervisors 
evaluation. 

(+8) (19} "Supervised Practical Training" means supervision to 
teach the knowledge and skills related to substance 
abuse professionals at a ratio of one hour of 
supervision to every 10 hours of practice for .^00 
practice hours. 

<-H^ (20) "Suspension" means a loss of certification or the 
privilege of making application for certification. 

Authority G.S. 90-113.30: 90-113.33: 90-113.40: 90-113.41: 
90-113.41A. 

SECTION .0500 - ETHICAL PRINCIPLES OF 
CONDUCT 

.0503 COMPETENCE 

The substance abuse professional shall recognize that the 
profession is founded on national standards of competency 
which promote the best interests of society, of the client and of 
the profession as a whole. The cou n selo r substance abuse 
professional shall obtain continuing education as a component 
of professional competency. 

(1) The substance abuse professional shall p r event the 
practice of su b stan ce abuse counsel i ng assist in the 
prevention of practices by unqualified or unauthorized 
p ersons, persons in the field. 

(2) The substance abuse professional who is aware of 
unethical conduct or of unprofessional modes of 
practice shall report such violations to the appropriate 
certifying authority. 

(3) The substance abuse professional shall recognize 
boundaries and limitations of counselo r 's his or lier 
competencies and not offer services or use techniques 
outside of these professional competencies. 

(4) The substance abuse professional shall recognize the 
effect of professional impairment on professional 
performance and shall be willing to seek appropriate 
treatment for oneself or for a colleague. The 
cou n selo r substance abuse professional shall support 
peer assistance programs in this respect. 

Authority G.S. 90-113.30: 90-113.36: 90-113.37: 90-113.39: 
90-113.40: 90-113.41: 90-113.43: 90-113.44. 

.0507 CLIENT WELFARE 

The substance abuse professional shall respect the integrity 
and protect the welfare of the person or group with whom the 
counselor he or she is working. 

( 1 ) TTie substance abuse professional shall define for self 
and others the nature and direction of loyalties and 
responsibilities and keep all parties concerned 
informed of these commitments. 

(2) The substance abuse professional, in the presence of 
professional co n fi i cl conflict, shall be concerned 



NORTH CAROLINA REGISTER 



January 14, 2000 



1260 



"" — — — mrmfiii'rnimT™'™""'"''—' 



PROPOSED RULES 



primarily witli tlie welfare of the client. 

(3) The substance abuse professional shall terminate a 
counseling or consulting relationship when it is 
reasonably clear to the cou n selo r professional that the 
client is not benefitting from it. 

(4) The substance abuse professional, in referral cases, 
shall assume the responsibility for the client's welfare 
either by termination by mutual agreement or by the 
client becoming engaged with another professional. 
In situations when a client refuses treatment, referral 
or recommendations, the substance abuse professional 
shall carefully consider the welfare of the client by 
weighing the benefits of continued treatment or 
termination and shall act in the best interest of the 
client. 

(5 ) The substance abuse professional who asks a client to 
revel personal information from or about other 
professionals or allows information to be divulged 
shall inform the client concerning the duties and 
responsibilities resulting from dissemination of the 
information. The information released or obtained 
with informed consent shall be used for expressed 
purposes only. 

(6) The substance abuse professional shall not use a client 
in a demonstration role in a workshop setting where 
such participation would foreseeably seriously harm 
the client. 

(7) The substance abuse professional shall ensure the 
presence of an appropriate setting for clinical work to 
protect the client from harm and him or her the 
counselo r and the profession from censure. 

(8) The substance abuse professional shall collaborate 
with other health care professionals in providing a 
supportive environment for the client who is receiving 
prescribed medications. 

Authority G.S. 90-1 13.30: 90-113.33: 90-113.39: 90-113.40: 
90-113.43:90-113.44. 

.0509 CLIENT RELATIONSHIPS 

The substance abuse professional shall inform the prospective 
client of the important aspects of the potential relationship. 

( 1 ) The substance abuse professional shall inform the 
client and the client's agreement in areas likely to 
affect the client's participation including the recording 
of an interview, the use of interview material for 
training purposes and in some cases or in others, 
observation of an interview by another person. 

(2) The substance abuse professional shall inform the 
designated guardian or responsible person of the 
circumstances that may influence the relationship, 
when the client is a minor or incompetent. 

(3) The substance abuse professional shall not enter into 
a professional relationship with members of one's 
immediate family, friends or close associates. The 
substance abuse professional may enter into a 



counseling relationship with others where there was 
a pre-existing relationship involving the welfare of 
that person that will not be jeopardized by this dual 
relationship. 
(4) The substance abuse professio n al shall not i 

sexual activity with eithe r a cu rr e n t o r former clie n t. 
Sexual activity and contact of a substance abuse 
professional with a client shall be restricted as 
follows: 

(a) The substance abuse professional shall not 
engage in nor solicit sexual activity or sexual 
contact with a current client. 

(b) The substance abuse professional shall not 
engage in nor solicit sexual activity or sexual 
contact with a former client for at least two 
years after the terminatic^n of tJTe counseling 
relationship. 

(c) The substance abuse professional shall not 
engage in nor solicit sexual activity or sexual 
contact with any person the professional knows 
to be a current client of his or her own agency 
or place of professional employment. 

(d) The substance abuse professional shall not 
engage in nor solicit sexual activity or sexual 
contact with any person the professional knows 
to be a former client ot' his or her own agency 
or place of professional employment for at 
least two years after the termination of the 
counseling relationship if both the professional 
was employed at the agency and the former * 
client was a client of the agency during the 
same time period. 

AitthoimG.S. 90-113.30: 90-113.33: 90-113.34: 90-113.44. 



.0511 REMUNERATION 

The substance abuse professional shall establish financial 
arrangements in professional practice and in accord with the 
professional standards that safeguard the best interests of the 
client, of the counselo r individual professional and of the 
profession. 

( 1 ) The substance abuse professional shall consider 
carefully the ability of the client to meet the financial 
cost in establishing rates for professional services. 

(2) The substance abuse professional shall not send nor 
receive any commission or rebate or any other form of 
remuneration for referral of clients for professional 
services. The counselor substance abuse professional 
shall not engage in fee splitting. 

(3) The substance abuse professional shall not accept a 
private fee or any other gift or gratuity for 
professional v/ork with a person who is receiving 
such services through the professional's institution or 
agency. The policy of a particular agency may make 
explicit provisions for private work with its clients by 
members of its staff and in such instances the client 



I 



I 



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PROPOSED RULES 



must be fully apprized of all policies affecting the 
client. 

Authority G.S. 90-113.30: 90-113.33: 90-113.44. 

SECTION .0600 - GROUNDS FOR DISCIPLINE AND 
DISCIPLINARY PROCEDURES 

.0601 GROUNDS FOR PROFESSIONAL DISCIPLINE 

Violation of these principles shall be deemed grounds for 
discipline: 

(1) Fraud or Misrepresentation in Procuring or 
Maintaining Certification. 

(a) Acts such as to practice, attempt to practice, or 
to supervise others while representing oneself 
to be a certified substance abuse c ounselo r 
professional oi^-a c e r tified substance abuse 
p revention consultant without being duly 
certified; 

(b) False representation of material fact to procure 
or maintain certification, whether by word or 
conduct; 

(c) Concealment of requested information 
contained in the application; 

(d) Attempting to file or tiling any false or forged 
diploma, certificate, affidavit, transcript, 
identification or qualification; 

(e) Submitting material which is not the work 
V product of the applicant; 

' (0 Knowingly assisting another to procure or 

maintain certification on the basis of fraud; or 

(g) Aid, abet, or assist any uncertified person to 

practice as a certified substance abuse 

professional in violation of this code. 

(2) Fraud or Misrepresentation to the Public. 

(a) Knowingly make misleading, deceptive, false, 
or fraudulent misrepresentations in the practice 
of the profession; or 

(b) Pursue an illegal practice as set forth in G.S. 
90-113.43. 

(3 ) Exploitation of Client or Recipient Relationships. 

(a) Entering into a professional relationship in 
violation of Rule .0509 of this Chapter; 

(b) Participating in or soliciting sexual r elations 
activity or sexual contact with a current or 
former clie n t; client or client of one'sagency; 

(c) Entering into personal financial arrangements 
with a client or recipient which make an 
improper use of the client or recipient. 

(4 ) Illegal Acts of Practices. 

(a) Violation of Federal of State confidentiality 
statutes; 

(b) Conviction of any controlled substances law, 
until proof of rehabilitation is established to the 
Board's satisfaction; or 

(c) Being any accessory to or participating in 
dishonesty, fraud, misrepresentation or any 



other illegal act involving a client or recipient. 

(5) Professional Incompetency or Failure to Meet 
Standards of Practice. 

(a) Failure to follow the standards of skill and 
competence possessed and applied by 
professional peers certified in this State acting 
in the same or similar circumstances: 

(b) Use of drugs or alcoholic beverages to the 
extent that professional competency is affected, 
until proof of rehabilitation can be established; 

(c) Refusal to seek treatment for chemical 
dependency or mental health problems which 
impair professional performance; or 

(d) Engaging in conduct that an ordinary, 
reasonable, and prudent person could foresee 
would result in harm or injury to the public. 

(6) The following are prohibited governing professional 
relationships: 

(a) Offering professional services to a client or 
other service recipient in a — counseli n g 
professional relationship with another 
substance abuse counselor professional except 
with the knowledge of the other professional or 
after the termination of the client or recipient's 
relationship with the other professional; 

(b) Sending or receiving any commission or rebate 
or any other form or remuneration for referral 
of clients or recipients for professional services 
from the professional to whom the referral was 
made; 

(c) Accepting from or charging the client a fee for 
a referral only when no other services are 
provided; 

(d) Accepting or charging a fee when no substance 
abuse professional services are actually 
provided; except actual costs for copies and 
administrative services may be recovered; 

(e) Accepting a gratuity or any other gift other 
than a one-time gift having a value of less than 
twenty five dollars ($25.00) for professional 
work with a person who is receiving the 
services through the professional's employer; 
or 

(f) Failing to cooperate with the investigations and 
proceedings of any professional ethics 
committee unless the failure is within the 
exercise of the professional's constitutional 
rights. 

Authority G.S. 90-113.33: 90-113.37: 90-113.39: 90-113.40: 
90-113.42: 90-113.43: 90-113.44: 90-113.45: 90-3.^8. 

SECTION .0700 - APPEALS PROCESS 

.0706 WHO SHALL HEAR CONTESTED CASES 

All administ r ative Administrative hearings shall be heard by 
the Board. Board or, upon determination by the Board, the 



NORTH CAROLINA REGISTER 



January 14, 2000 



1262 



PROPOSED RULES 



Office ot' Administrative Heariniis. The President or his or her 
designee shall be responsible for the conduct of the heaiMng. a 
Board hearing. 

Autliorin G.S. 90-113.30; 90-113.39: 90-113.40. 



1263 



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14:14 



TEMPORAR Y RULES 



i 



The Codifier of Rules has entered the following temporary ride(s) in the North Carolina Administrative Code. Pursuant to G.S. 
I50B-2I. 1(e), publication of a temporary rule in the North Carolina Register serx'es as a notice of rule-making proceedings 
unless this notice has been previously published by the ageiuy. 



TITLE 4 - DEPARTMENT OF COMMERCE 



Rule-making Agency: Department of Commerce 



conditions, legal requirements, and any other factors determined 
to be in the state'sbest interest. TTiese shall be made available 
to all agencies via the ITS IT procurement website. 



Rule Citation: 4 NCAC 21 A .0I0I-.0103: 2IB .0I0I-.0I03. 
.0201-.0207. .0301-.0315. .0401-.0403, .0501-.0505. .0601- 
.0603. .0701-.0703, .0801, .0901-.0902. .1001-. 1006, .1008- 
.1031,. 1101-.1105, .1201-. 1202 

Effective Date: Jaiuuiiy I. 2000 

A Public Hearing will be conducted at 10:00 a.m. on Februaiy 
15. 2000 at the Parker Lincoln Building. Cape Hatteras 
Conference Room, Suite 168, 2728 Capital Boulevard, Raleigh, 
NC. 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 143B-472.50: 143B- 
472.65 

Reason for Proposed Action: Senate Bill 222 enacted to 
m)rovide for acquisition of information technology assets in 
'conformity with G.S 143-135.9. 

Comment Procedures: Written comments may be directed to 
Dale Kiser, ITS/Department of Commerce, PO Bo.x 17209, 
Raleigh. NC 27619-7209. Comments must be received no later 
than Februan- 15, 2000. 



Fiscal Impact 
State Local 
/ 



Sub. None 



CHAPTER 21 - OFFICE OF INFORMATION 
TECHNOLOGY SERVICES 

SUBCHAPTER 21A - INFORMATION TECHNOLOGY 
PROCUREMENT 

SECTION .0100 - FORMS, TERMS AND 
CONDITIONS, AND DEFINITIONS 

.0101 FORMS, TERMS AND CONDITIONS 

The OrUce of Information Technology Services (ITS) shall 
prescribe forms, terms and conditions and advertisement 
requirements for acquiring goods and services related to 
nformation technology for agencies. The forms, terms and 
conditions, and advertisement requirements shall be established 
taking into consideration market volatility, trends and 



History Note: Authority G.S 143B-472.51: 143B-472.65: 
Temporarx Adoption Eff. Jcmuarx I. 2000. 

.0102 DEFINITIONS 

For the purpose of this Chapter. 

(1) Agency is dcllned as an entity enumerated m G.S. 
143B-3(I). 

(2) Best Value Procurement is dcllned as a procurement 
process that has as a fundamental objective the 
reduction of total cost of ownership. The particular 
procurement methods used are selected so as to result 
in the best buy for the state in terms of the function to 
be performed. Competitive Best Value Procurement 
allows for the use of alternate competitive purchasing 
techniques in addition to low price analysis in the 
selection of supply sources determined to represent 
best value. 

(3) Clarification is defined as limited exchanges between 
the state and offerors that may occur when negotiation 
is riot contemplated. Offerors may he given the 
opportunity to clarify certain aspects of proposals or 
to resolve minor clerical errors. 

(4) Communications are exchanges between the state and 
offerors after receipt of offers to address issues of past 
performance, to enhance the state's understanding of 
offers, to allow reasonable interpretation of the offer. 
or to facilitate the state's evaluation process. 
Communications shall not be used to cure deficiencies 
or material omissions in the offer or to alter technical 
or cost elements of the offer. 

(5) Competition in purchasing exists when the available 
market for the goods or services to be acquired 
consists of more than one supplier that is technically 
qualified and willing to submit an offer. The public 
coiTipetitive process is the process followed by a 
public agency to solicit offers from multiple suppliers 
to provide the specified goods or services. The 
process must be conducted in a manner that attempts 
to ensure that all qualified suppliers who arc willing 
to submit offers are treated equitably and are not 
placed at a disadvantage with respect to the process 
outcome. 

(6) Competitive Range is defined as the range of all of 
the most highly rated offers, as determined by the 
evaluation committee. The range shall be sufficient 
to establish adequate competition as determined by 
the State Chief Information Officer (CIO) or his 



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m 

19] 



(10) 



(12) 
03} 



(14) 



(15) 



(16) 



dcsit^nec. 

Dcficiencv is defined as a failure to meet a stated 

requirement or a eomhination of weaknesses in an 

otter that inereases the risk of unsueeessful contract 

performance to an unacceptable level. 

Goods are defined as any information technology 

commodities including equipment, materials, or 

supplies. 

Negotiation is defined as exchanges in either a 

competitive or sole source environment between the (benchmark). 
state and offerors that are undertaken with the intent 



of allowing offerors to revise their offers. Revisions 
may apply to price, schedule, technical requirements, 
or other terms of the proposed contract. Negotiations 
are specific to each offer and shall be conducted to 
maximize the state's ability to obtain best value based 
on the evaluation factors set forth in the solicitation. 
The state may also give evaluation credit for technical 
solutions exceeding mandatory minimums or 
negotiate with offerors for increased performance 
beyond mandatory minimums. 
Offer is defmed as a bid or proposal submitted [n 
response to any solicitation document utilizing "Best 
Value" procurement methodology including Invitation 
lor Bids (IFB). Request for Proposals (RFP), Request 
lor Quotations (RFQ), negotiation, or other 
acquisition processes, as well as responses to 
Solution-Based Solicitations and Government- Vendor 
Partnerships. 

Price is defined as the amount paid by the state to a 
vendor for a good or service. 



Procurement is defined as acquisition of goods and 
services 

Services is defined as any process of' providing 
services requiring specialized knowledge, experience, 
expertise, professional qualifications, or similar 
capabilities for any aspect of information technology 
including, but not limited to. work or task 
performance, review, analysis, and advice jn 
formulating or implementing improvements in 
programs or services. 

Solicitation document is defined as a written or 
electronic IFB, RFQ, RFP, Solution-Based 
Solicitation, Government- Vendor Partnership. 
Request for Information (RFI) document or other 
acquisition documents expressly used to invite offers 
or request information regarding the acquisition of 
goods and services or other acquisition documents. 
Total Cost of Ownership is defined as a summation of 
all purchase, operating, and related costs for a product 
or service. It includes hut js not limited to purchase 
price, transportation, receiving and inspection, 
maintenance, operating costs, downtime, energy costs, 
and disposal costs. 

Weakness is defined as a flaw in the offer that 
increases the risk of unsuccessful contract 



performance. 

HistoiyNote: AuthorinG.S. 143-135.9: 1438-472.51; 143B-_ 

472.65; 

Temporary Adoption Eff. Janiian - l_^ 2000. 

.0103 BENCHMARK 

The Secretary of Commerce (Secretary) establishes a 
benchmark of' one hundred thousand dollars ($100.000) 



History Note: Authority G.S. 143B-472.63: 143B-472.65: 
Temporary' Adoption Eff. Janiiarx 1. 2000. 

SUBCHAPTER 21B - PROCUREMENT REQUESTS 

SECTION .0100 - REQUISITIONING 

.0101 PROCEDURE 

Agencies shall request procurement action by ITS by means 
of electronic or written requests. 

HistoiyNote: Authority G.S. 1438-472.55; 143B-472.65; 
Temporary Adoption Eff. Jaiuiarx 1. 2000. 

.0102 VERBAL REQUESTS 

Verbal requests for procurement activities are not satisfactory 
substitutes for electronic or written requests except in _ . 
emergencies. Electronic or written confirmation must foUowBM 
any such request made in an emergency situation. 

Hi.'itoiy Note: Authority G.S. 1438-472.55: 1438-472.65; 
Temporarx Adoption Eff. Jauuarx 1. 2000. 

.0103 CONFIDENTIALITY 

All information and documentation (verbal and written) 
relative to development of a contractual document for a 
proposed procurement shall be deemed confidential in nature, 
except as deemed necessary by the purchaser to develop a 
complete contractual document. Such material shall remain 
confidential until successful completion of the procurement 
process. 

HistoiyNote: Authority G.S. 1438-472.65; 
Temporarx Adoption Eff. Januarx [^ 2000. 

SECTION .0200 - SPECIFICATIONS 

.0201 TYPES OF SPECIFICATIONS 

TTiere shall be two general types of specifications. A standard 
specification shall be originated and developed by ITS or any 
other agency or commission, statutorily authorized to develop 
standards. It shall be comprehensive in nature, intended for 
repeated use and may be changed, as quickly and as often orl 
necessary, to address changes in the technology marketplace. 
An example of this type of specification is one that complies 



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necessary or advantageous to the state. 

Histoty Note: Authority G.S. 143B-472.55: 143B-472.65: 
Temporan' Adoption Eff. Jaiiiian- ]_^ 2000. 

.0206 COPIES OF SPECIFICATIONS 

ITS shall distribute copies of standard specifications to 
interested parties through electronic media and these shall be 
available for customer and public inspection at ITS and on the 
ITS IT procurement website. 

History Note: Authorit}- G.S. 143B-472.55: 1438-472.65: 
Temporan' Adoption Eff. Jatman- I, 2000. 



.0207 

All 



CONFIDENTIALITY 

information and documentation 



relative to the 



with the required statewide Technical Architecture as developed 
bv the Information Resource Management Commission (IRMC) 
for statewide use. The other general tvpe of specification shall 
to?e originated by the user and modified as necessary by ITS to 
accomplish the o\'erall efforts to manage the area of information 
technology effectively. This type of specification may include, 
but is not limited to, "brand name or equal" or "brand specific" 
technical and functional specifications. 

History- Note: Authority G.S. 143B-472.55: 143B-472.65: 
Teinporarx Adoption Eff. Januarx 1_^ 2000. 

.0202 NEED 

ITS may inquire into the need for and level of quality of goods 
or services requested by an agency. ITS may modify the level 
of specification requested to enhance overall direction of the 
state's program in the area of information technology. 

Hi.stoiy Note: Authority G.S. I43B-472.55: 143B-472.65: 
Temporan- Adoption Eff. Januarx 1, 2000. 

.0203 DEVELOPMENT OF SPECIFICATIONS 

(a) A standard specification is intended for general use and 
kept current by ITS. In formulating such a specification, 
advisory committees made up of personnel from various 
agencies and the private sector may be employed for advice and 
assistance. This type of specification may be offered also for the 
re\'iew and comments of manufacturers and suppliers who may 
participate in the procurement process on the items in question. 
' (b) Where competition is available and advantageous to the 
state, every purchaser shall use/write s pecifications and 
requirements that are reasonable to satisfy the need, but not 135.9 and Rule .0.308 of this Section. Exemptions may be 

granted by ITS w here a waiver, special delegation, exemption or 
an emergency purchase is permitted by rule. Information 
technology procurements shall comply with the following 
delegations and procedures: 

(1) Small Purchases: A small purchase is defined as the 
purchase of goods and services, where the 



development of a specification/needs document shall be deemed 
confidential in nature until specification adoption or finalization 
of the procurement process for a specific contract. 

History Note: Authority- G.S. 143B-472.65: 
Temporan- Adoption Eff. Januan- I, 2000. 

SECTION .0300 - PROCUREMENT AUTHORIZATION 
AND PROCEDURES 

.0301 PROCUREMENT PROCEDURES 

All technology purchases involving the expenditure of public 
funds by agencies not covered by term, convenience, or service 
contracts shall be in conformity with the "Best Value" 
information technology procurement requirements in G.S. 143- 



unduly restrictive, and that shall encourage competition in the 
open market and result in the best possible contract for the good 
or service needed. 



Histon- Note: Authority G.S. 143B-472.55: 143B-472.65: 
Temporan- Adoption Eff. Januan 1. 2000. 

.0204 ARTICLES FOR SPECIAL PURPOSES 

Where articles are to be used for educational or training 
purposes, by persons with disabilities, for test and evaluation or 
research purposes, or for anv purpo.se deemed necessary by the 
CIO or his designee, special or overriding consideration may be 
given to the factor of suitability in the preparation of 
specifications, evaluation of offers for waiver of competition, 
and the award of contracts. 

Histon Note: Authority- G.S. 143B-472.55: 143B-472.65: 
Temporan Adoption Eff. Januan 1, 2000. 

0205 SUBMISSION FOR ADOPTION 

Upon completion of a]] studies, reviews, and drafts; any 
person shall submit proposed standard specifications to the CIO 
3r hjs designee for consideration. A specification shall be 
adopted as a standard H' advantageous to the state. ITS may 
modify a standard specification on an interim basis as deemed 



expenditure of public funds is five thousand dollars 
($5.000) or less and is not covered by term or 
convenience contracts established by ITS. The 
executive officer of each agency, or his designee, 
shall set forth in writing purchasing procedures for 
making small purchases. The using agency shall 
award contracts for small purchases. 
(2) Purchases Governed by General Delegation or 
Statute: 

(a) For purchases made by an agency in\'olving an 
expenditure of public funds o\er five thousand 
dollars ($5.000) up to the benchmark 
established under the provisions of G.S. 143B- 
472.63 or the general delegation limit 
established by the CIO, the agencies shall use 
the following methodologies to encourage 



competition: 
(i) The agency 



shall issue solicitation 



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documents requesting or inviting offers; 

(ii) TTic agency shall include in solicitation 
documents standard language, including 
terms and conditions as published by 
ITS on |ts IT pr^)curement website. If 
additional terms and conditions are 
used, they shall not conflict with ITS' 
standard terms and conditions unless 
prior written approval is obtained from 
ITS for unusual requirements; and 

(iii) The agency may request distribution 
lists, if available from ITS, and use them 
in addition to distribution lists 
maintained by the agency for the 
purpose of soliciting competition. 

(b) Agencies shall advertise their solicitations 
through ITS for purchases exceeding ten 
thousand dollars ($10.000) up to the general 
delegation established by the CIO. Agencies 
may advertise smaller dollar purchases through 
ITS. 

(c) Tlie agencies may award contracts under their 
general delegation. 

(3) Procurement Procedure: Where the total requirements 
for goods or services involve an expenditure of public 
funds that exceed the benchmark established by the 
Secretary or the general delegation established by the 
CIO, offers in conformity with G.S. 143-1.^5.9 shall 
be solicited as follows: 

(a) Competitive offers for goods, excluding 
services, shall be solicited by ITS via 
advertisement, unless the advertising 
requirement is waived by the CIO or his 
designee subject to the provisions of Rule 
.0313 of this Section. This shall include offers 
for statewide terin/convenience contracts. 

(b) For service contracts exceeding twenty-five 
thousand dollars ( $25.000). ITS shall engage in 
a review and approval process to ensure that 
proposed and actual acquisitions are 
advantageous to the state. Agencies shall 
submit drafts of acquisition documents to ITS 
for approval prior to proceeding with the 
acquisition process. The agency shall then 
solicit offers m accordance with the rules 
established for Sub-items (2)(a) and (2)(b) of 
this Rule. After completing the evaluation of 
offers received, the agency shall prepare a 
written recommendation for award, and if over 
the benchmark established by the Secretary or 
the general delegation established by the CIO. 
shall submit a copy of al] offers received and 
their award recommendation or other action to 
ITS for approval or other action deemed 
necessary by the CIO or his designee 
(Examples: cancellation, negotiation, etc.). 



ITS shall send a notice of the ITS decision to 

the agency. The agency shall then award 

contracts for services. The contract shall not be 

for more than three years including extensions 

and renewals, without the prior approval of the 

CIO or his designee based on a determination 

that it is advantageous to the state. 

(4) Notwithstanding any waiver, general delegation. 

exemption, or emergency purchase rules; all 

telecommunications goods and services shall be 

procured by ITS. 

HistoiyNote: AutlwrinG.S. 143-135.9: 143B-472.63: 143B- 

472.65: 1438-472.42(1): 

Temporarx Adoption Eff. Janiiar\ 1, 2000. 



.0302 METHODS OF SOURCE SELECTION 

Competitive source selection may be conducted in accordance 
with the following best value methods. 



n 



( I ) The following steps describe the 
application of the best value 



process for 
procurement 
methodology: 

(a) Appropriate best value bidding method is 
determined by purchasing authority. 

(b) Solicitation document is developed and 
advertised in accordance with other rules of 
this Chapter. 

(c) Scheduled conferences or site visits are held in| 
accordance with solicitation requirements. 

(d) Offers are received and a public bid opening is 
conducted. For solicitations that allow for 
negotiation after receipt of offers, only the 
names of responding bidders are revealed. 
Price information shall be made public after 
evaluation and award. 

(e) An evaluation committee evaluates offers in 
accordance with the stated evaluation factors. 
For solicitations that include a best value 
ranking process, scoring and ranking may be 
determined by using any consistent rating 
methodology, including adjectival, numerical. 
or ordinal rankings. Relative strengths, 
deficiencies, weaknesses, and risks supporting 
the evaluation shall be docuinented jn the 
contract file. Evaluation factors may include 
but are not limited to quality factors; delivery 
and implementation schedule; maximum 
facilitation of data exchange and systems 
integration; warranties, guarantees, and return 
policies; vendor financial stability; consistency 
of the proposed solution with the state's 
strategic program direction; effectiveness of 
business solution and approach; industry andi 
program experience; prior record of vendor ' 
performance; vendor expertise with similar 



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projects; proven development methodologies 
and tools; and innovative use oi' technologies. 
(0 Clarifications, communications to establish a 
competitive range, or negotiations may be 
conducted with olTerors alter receipt of oilers 
in accordance with instructions and procedures 
set forth m the solicitation document and as 
appropriate to the method of source selection 
chosen. In those cases where negotiation is 
permitted by procedures set forth in the 
solicitation document, offerors may be allowed 
to submit best and llnal offers subsequent to 
negotiated changes in the initial offer or 
previous offer, 
(g) The evaluation committee shall determine a 
final ranking of aH offers under consideration 
using only the criteria set forth in the 
solicitation document. All offerors shall be 
ranked from most advantageous to least 
advantageous to the state, 
(h) Award must be made to the responsive and 
responsible offeror whose offer is determined 
in writing to be tlie most advantageous to the 
state, using all evaluation factors set forth in 
the solicitation. If the lowest price technically 
acceptable method is used, award must be 
made to the responding and responsible offeror 
with the lowest price . 
(i) TTie following types of solicitations may be 
used: 

(i) One-step Invitation for Bids (IFB) or 
Request for Proposals (RFP) - 
Technical and price response is 
submitted at the same time. 

(A) If the lowest priced technically 
acceptable method of source 
selection []>_ used, only 
clarifications are allowed. 

(B) If the trade off or ranking method 
of source selection is used, 
communications to establish 
competitive ranges or 
negotiations may be used. 

iii] Two stei2 IFB or RFP - Technical 
responses (step one) and price responses 
(step two) to solicitation are submitted 
separately. 

(A) If tlie lowest priced technically 
acceptable method is used, 
technical responses ( step one ) are 
evaluated for acceptability only. 
Only clarifications with offerors 
are allowed. Price offers are 
opened (step two) for only those 
offerors who submitted 
technically acceptable responses. 
Selection is made by low price 



(2] 



analysis. 

(B) If the trade off or ranking method 

of source selection is used. 

technical responses (step one) are 

submitted, after which 

clarifications, communications to 

establish a competitive range. 

and negotiations with offerors 

may be allowed as specified in 

the solicitation document. Price 

responses (step two) are 

requested only from offerors 

placed in Utc competitive range 

after the technical evaluation and 

discussion phase has concluded. 

Subsequent negotiations may be 

conducted with offerors after 

receipt of price responses. Final 

price adjustments or best and 

final offers may be allowed. 

A trade off method of source selection may be utilized 

when it is in the best interest of tlie state to consider 

award to other than the lowest priced offer or other 

than the highest technically qualified offer. For a 

solicitation using a trade off source selection method. 

the following shall apply: 

(a) All evaluation factors that will affect the 
contract award decision and their relative 
importance shall be clearly stated in the 
solicitation, 
(h) Price must be considered as an evaluation 
factor in the selection process. The solicitation 
shall state the importance or numerical weight 
of ah evaluation factors including price. 
Offers are ranked using the evaluation factors 



icj 



id] 



(3) The 
selec 



and their relative importance or weight as 
defined in the solicitation document. The 
relative overall ranking of any offer may be 
adjusted up or down when considered with, or 
traded-off against, other non-price factors. For 
example, an offer with the lowest price when 
compared to other offers would normally 
receive the best ranking in the price evaluation 
category. However. H' other non-price 
evaluation factors received low rankings, the 
overall ranking ol' the offer would tie reduced. 
Clarifications are permitted. If specified in the 
solicitation, communications and negotiations 
may be permitted afier receipt of offer. 
lowest price technically acceptable source 
tion method may be used when best value is 



expected to result from selection of tlie technically 
acceptable offer with the lowest evaluated price. 
When using the lowest price technically acceptable 
method, the following shall apply : 
(a) The evaluation factors that establish the 
requirements of acceptability shall be set forth 



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1268 



TEMPORARY RULES 



in the solicitation. Solicitations shall specify 
that award will be made on the basis of the 
lowest evaluated price of those proposals that 
meet or exceed the acceptability requirements 
lor non-price factors. 

(b) Trade offs between price and non-price factors 
are not permitted. 

(c) Proposals are evaluated for acceptability but 
are not ranked usint; the non-price factors. 

(d) Only clarifications are permitted. 

(4) Other competitive best value source selection 
methodologies may be used if they are determined to 
he advantageous to the state and are approved for use 
by the CIO or his designee. 

HistonNote: AiithorinG.S. 143-135.9: I43B-472.63: 143B- 

472.65: 1438-472.42(1): 

Temporan- Adoption Eff. Jamuirx J_^ 2000. 



HistonNote: Aiithorit}- G.S. 143B-472.65: 
Temporarx Adoption Eff. Januan' [^ 2000. 

.0304 RECALL OF OFFERS 

An authorizedagent of a company may recall an offer prior to 
opening, through a signed request. 

History Note: Aitthority- G.S. 1438-472.65: 
Temporai-\ Adoption Eff. Jannai-x 1^ 2000. 

.0305 PUBLIC OPENING 

(a) ITS and agencies shall publicly open advertised sealed 
procurements using the lowest price technically acceptable 
source selection method at the time, dale, and place identified in 
the solicitation document. At the time of opening, the names of 
the bidders shall become public record after compliance with all 
the requirements of the ITS sealed procurement process as in 
Rule .0,^02 (>f this Section. 

(b) Under a two-step process, only those offerors that the 
agency that issued the solicitation determines to have acceptable 
technical offers shall be invited to submit price offers. The price 
offers shall be publicly opened and the offeror(s) with the 
acceptable technical offer(s) notified of the time and place for 
the opening. After opening, the price olTer(s) shall become 
public record jf no negotiation is permitted. At least two agency 
working days shall be given prior to the opening. TTiere shall be 
at least two agency employees present at the opening. 

(c) Under a two-step process where negotiations are 
anticipated, only those offerors determined by the agency that 



issued the solicitation to have acceptable technical offers shall 
be invited to submit price offer(s). The price offers shall be 
publicly opened and the offeror(s) with the acceptable technical 
offer(s) notified of the time and place for the opening. The price W 
offer(s) shall become public record upon point of award. At least 
two agency working days shall be given prior to the opening. 
There shall be at least two agency employees present at the 
opening. 

Histoiy Note: Authority G.S. 1438-472.65; 
Tenworarx Adoption Eff. Januarx J_^ 2000. 

.0306 LATE OFFERS, MODIFICATIONS, OR 
WITHDRAWALS 

The agency or ITS shall not consider late offers, 
modifications, or withdrawals unless these would have been 
timely except for the action or inaction of agency or ITS 
personnel directly serving the procurement process. Offerors 
shall deliver all offers on time, regardless of the mode of 



11^ 



.0303 ELECTRONIC, FACSIMILE AND delivery used 
TELEPHONE OFFERS 

ITS and agencies shall not accept electronic, facsimile, and 
teleph(>ne offers in response to solicitation documents that are 
required to be .sealed, unless specifically approved by ITS 
procurement based on a determination that it is advantageous to 
the state. 



Histoiy Note: Authority G.S. 1438-472.65: 
Tentporarx Adoption Eff. Januarx 1. 2000. 



.0307 ERROR/CLARIFICATION 

When the agency or ITS determines that an offer appears to 
contain an obvious error or otherwise where an error is 
suspected, the agency or ITS may investigate or act upon the 
circumstances. Any action taken shall not prejudice the rights i 
of the public or other offering companies. Where offers are 
submitted substantially in accordance with the solicitation 
document but are not entirely clear as to intent or to some 
particular fact or where there are other ambiguities, the agency 
or ITS may seek and accept clarifications provided that, in doing 
sOj no change is permitted in prices. 

History Note: Authority G.S. 1438-472.65: 
Teniporan' Adoption Eff. Januan- f^ 2000. 

.0308 EXTENSION OF ACCEPTANCE TIME 

When the agency or ITS determines it is in the public interest. 
the agency or ITS may request that the offerors extend the time 
offered for the acceptance of offers. 

Histoiy Note: Authority G.S. 1438-472.65: 
Temporarx Adoption Eff. Januarx 1. 2000. 

.0309 EVALUATION 

(a) In determining the award of contracts, the agency or ITS 
shall consider and evaluate bona fide offers as provided by 
statute and applicable rules, the agency or ITS shall identify in 
the solicitation document the evaluation criteria to be used in 
determining the award of contract. 

(b) Unsigned offers shall be rejected by the awarding agency 

(c) During the period of evaluation and prior to award, only 
the information provided in the tabulation is public record. Only 



II 



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persons in the agency who are responsible for handhng the 
offers and accompanying information, and others determined 
necessary by the agency that issued the solicitation document, 
| shall possess offers, including any accompanying information 
"submitted with the offers for the purpose of eyaluation and 
award of contract. Any communication with an offeror that may 
be necessary for purpose of clarification of its offer shall he 
conducted by the agency that issued the solicitation document. 
Further offeror participation in the eyaluation process shall not 
he permitted except as deemed necessary by the CIO or his 
designee to effectiycly conclude the award process. After award 
of the contract or when the need for the item or seryice is 
canceled, the complete tile shall be available to any interested 
party with the exception of trade secrets subject to the provisions 
G.S. I32-I.2(nd. 



History Note: Authority G.S. 143B-472.65; 
Temporary Adoption Eff. Jcmuarx ]_^ 2000. 

.0310 NOTIFICATION OF AWARD 

If a solicitation [s required to be advertised through ITS, then 
notice of the resulting contract award shall be posted via the ITS 
IT procurement website by the agency issuing the solicitation 
document. After contract award, successful companies shall be 
notified in writing or electronically by the agency issuing the 
solicitation document. 

Histoiy Note: Authority' G.S. 1438-472.65: 
Temporary Adoption Eff. Januan' I, 2000. 

.0311 LACK OF COMPETITION 

Where only a single offer or a single acceptable offer is 
received, the agency or ITS shall ascertain the reason and make 
it a matter of record. 

History Note: Authority G.S. 143B-472.65: 
Temporary Adoption Eff. Januan- 1. 2000. 

.0312 SOLICITATION DOCUMENTS 

All agencies shall use a solicitation document when soliciting 
sealed offers on contracts valued over twenty-five thousand 
dollars ($25.000) unless the CIO or his designee waives the 
requirement pursuant to rule. In their solicitation documents, the 



agencies and ITS shall require offerors to certify that each offer 



is submitted competitively and without collusion. 

Histoiy Note: Authority' G.S. 143B-472.6I; 1438-472.65; 
Temporary Adoption Eff. January- l_^ 2000. 



0313 DIVISION OF REQUIREMENTS 

An agency shall not divide requirements to keep the 
expenditure under its benchmark or delegation and thereby avoid 



following the appropriate contracting requirement. In the case 



3f similar and related items and groups of items, the dollar limits 



ipplv to the total cost rather than the cost oi' any single item. 



Histoiy Note: Authority G.S. 1438-472.63: 1438-472.65: 



Temporary Adoption Eff. January 1, 2000. 

.0314 ADVERTISEMENT REQUIREMENTS 

(a) All advertisements required by rule shall be through the 
ITS IT procurement website. Agencies shall advertise their 
solicitations at least once and at least 10 days prior to the date 
designated for opening unless the CIO or his designee waives 
advertising requirements. Conditions perinitting waiver of 
advertising requirements shall include, but not be limited to the 
following: 



Ui 



(2) 
ill 

14} 
(5} 



Acquisition of goods or services subject to rapid price 

fluctuations or immediate acceptance. 

Emergency situations (pressing need). 

Acquisition of goods or services needed for any 

ongoing job, task, or project . 

Acquisition of goods or services where performance 

or price competition is not available. 

Any determination that no useful purpose would be 

served by requiring advertisement. 

(b) This Rule does not prevent solicitation of offers by 
additional direct mailings or additional advertisement by an 
agency. 

(c) Agencies required by rule to advertise their solicitations 
shall electronically transmit the required data to the ITS IT 
procurement website. The required data shall include the 
complete solicitation document (specifications, requirements, 
terms and conditions, etc.) with agency name, buyer name, 
phone number and address for accessing hard copies of the 
solicitation; solicitation identification number; title (a short 
description of the good or service); and the opening date, time 
and place. If the solicitation requires potential offerors to attend 
a mandatory conference or mandatory site visit, this information 
shall also be furnished with the advertisement, to include dale, 
time, location, contact person and the contact person's phone 
number. 

(d) Within three agency working days from the award of an 
advertised contract, agencies shall electronically transmit an 
award notice directly to the ITS IT procurement website, unless 
there is a valid reason for not posting such information. The 
award notice shall be posted for at least 30 calendar days. This 
award notice shall identify the contract and award information. 

(e) Exceptions to this Rule are as follows: 

(1 ) When the agency's executive officer or his designee 
deems that there is a valid reason for the agency not 
to transmit the advertisement or award notice 
electronically, that agency may submit the data to ITS 
so ITS may transmit U electronically or the agency 
may place the advertisement (excluding the complete 
solicitation document) via newspaper. If advertised 
via newspaper, the agency that issued the solicitation 
document shall be responsible for the advertisement 
and the award notice shall not be required. Some 
valid reasons include, but are not limited to. computer 
equipment failure and networking difficulties. The 
rationale for waiver of electronic advertising 
requirements shall be documented and become part of 
the public record. 



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(2) U there is an attachment to a solieitation that the 
aiieney determines will not be electronicallv 
transmitted, then the solicitation document, when it is 
electronicallv transmitted, shall include instructions to 
contact the agency that issued the solicitation to 
obtain the attachment. 

(3) 11' an 



specifications or indication that revision(s) would be to the 
state's advantage; cancellation of or changes [n the intended 
project or other determination that the proposed requirement is 
no longer needed; limitation or lack of available funds;i 



circumstances that prevent determination of the lowest best 
value offer; and any determination that rejection would be to the 
best interest of the state. 

Histoiy Note: Authority- G.S. I43B-472.65: 
Temporarx Adoption Eff. Jatuian' _A 2000. 

.0402 PUBLIC RECORD 

Action in rejecting offers in whole or in part shall be made a 
matter of record. 

Histoiy Note: Authority G.S. 143B-472.65; 
Temporarx Adoption Eff. Janiiarx I, 2000. 

.0403 NEGOTIATION 

If an agency does not receive an offer that is deemed to be 
advantageous to the state in response to a solicitation or all 
offers are rejected and if k is determined by the agency that 
issued the solicitation document that soliciting offers again 
would serye no purpose, negotiations may be conducted with 
sources of supply that may be capable of satisfying the 
requirement. The negotiations shall be conducted by that agency 
if under their benchmark or delegation. Negotiations shall be 
conducted in writing and shall include standard language and 



If an agency determines that it is not feasible to 
electronically transmit a particular solicitation 
document through the IT.S IT Procurement website, 
then the agency shall electronically transmit a 
summary notice in the same way as if it had 
electronically transmitted the solicitation document. 
The summary notice shall instruct anyone inquiring 
about the solicitation on ttie ITS IT procurement 
website to contact the agency for a hard copy. 

Histoiy Note: Authority G.S . 143B-472.50: 1438-472.65: 
Temporarx' Adoption Eff. Jamiarx I. 2000. 

.0315 MANDATORY CONFERENCES/SITE VISITS 

(a) When a solicitation requires potential offerors to attend a 
mandatory conference or mandatory site yisit, the date, time, 
location, and other pertinent details of the conference or site visit 
shall be given in the solicitation document and m the 
advertisement (if required by rule). 

(b) If only one potential offeror attends the mandatory 
conference or mandatory site yisit. the conference or site visit 
may be conducted, but the agency shall in\ estigate why only one 
potential offeror was in attendance and ascertain jf there is any 
competition available. If it is determined that competition is 
available, time permitting, the agency may schedule another 
conference or site visit, if deemed to be to the advantage of the 
state. If it is determined that there fs no competition available, 
then the procurement may be handled as a waiver as permitted 
by rule. 

(c) Any and all questions by a potential offeror regarding a 
solicitation document shall be addressed to the purchaser named 
on the document. Any and all revisions to the solicitation 
document shall be made only by written addendum from the 
purchaser. Verbal communications from whatever source are of 
no effect. 

Histoiy Note: Authority G.S. 143B-472.65: 
Temporarx Adoption Eff. Januarx U 2000. 

SECTION .0400 - REJECTION OF OFFERS 

.0401 BASIS FOR REJECTION 

In soliciting tillers, the agency or ITS may reject any offer in 
whole or fn part. Basis for rejection shall include, but not bie 
limited to, the agency or ITS deeming the offer unsatisfactory as 
to quantity, quality, delivery, price or service offered; the offer 
not complying with conditions of the solicitation document or 
with the intent t>f the proposed contract; lack of competitiveness 
by reason of collusion or otherwise or knowledge that 
reasonably available competition was not received; error(s) in History Note: Authority G.S. 143B-472. 65: 



terms and conditions issued by ITS. If tlie negotiations arel 
conducted with only one source or rf only one source responds 
to the negotiations, the reason for lack of competition shall he 
documented in writing for public record. Negotiations may also 
be conducted under conditions that merit a waiver of 
competition or fn other situations that are advantageous to the 
state as determined by the CIO or his designee. 

Histoiy Note: Authority G.S. 143B-472.65: 
Temporarx Adoption Eff. Januarx [^ 2000. 

SECTION .0500 - INSPECTION AND TESTING 

.0501 RESPONSIBILITY 

The receiving agency shall inspect all materials, supplies, and 
equipment upon delivery to ensure compliance with the contract 
requirements and specifications. 

Histoiy Note: Antlwrity G.S. 143B-472.65: 
Temporarx Adoption Eff. Januarx j_^ 2000. 

.0502 SELECTION 

ITS may periodically inspect any items to ensure that 
specifications are met. The agency must ensure that goods or 
services purchased comply with applicable codes, statutes, local 
ordinances, policies or safety requirements. 



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Temporary Adoption Eff. January 1. 2000. 

.0503 SAMPLES 

I When samples are required in response to a solicitation 
document. ITS may test those samples or have them tested at 
other designated facilities. Samples shall not be sent directly to 
laboratories outside the agency or ITS unless it is determined by 
ITS that these facilities have the capability, time, or expertise 
needed. 

HistoiyNote: Authority G.S. 143B-472.65; 
Temporary Adoption Eff. Januan- I. 2000. 

.0504 SPECIFICATIONS 

When the agency that awarded the contract or ITS determines 
it to be advantageous to the state, it may authorize revisions to 
a contract specification, including any cost adjustment 
associated with any such revision, as part of contract 
administration. If an increase in cost results in the total contract 
value being more than the agency's benchmark or delegation, 
then the agency shall obtain prior written approval from ITS. 
regardless of what agency initially awarded the contract . 

History- Note: Authority G.S. I43B-472.65; 
Temporary Adoption Eff. January 1_^ 2000. 

.0505 REPORT OF DISCREPANCY 

Where goods or services delivered fail to meet the 
specifications or contract requirements, the discrepancy shall be 
resolved by the agency that issued the solicitation document. 



HistoiyNote: Authority G.S. 143B-472.65: 
Temporary Adoption Eff. January I, 2000. 

SECTION .0600 - GUARANTEES AND WARRANTIES 

.0601 ENFORCEMENT 

Using agencies shall enforce the contractual guarantee or 
warranty applying to the goods or services purchased. 

History Note: Authority G.S. 1438-472.65: 
Temporary Adoption Eff. January 1. 2000. 

.0602 REPORT TO PURCHASING 

If any agency has difficulty in obtaining satisfactory 
performance including service as provided for in a guarantee or 
warranty, under a contract handled by ITS; the agency shall refer 
the matter to ITS. 



Histoiy Note: Authority G. S. 143B-4 72. 65: 
Temporary Adoption Eff. January j_^ 2000. 



.0603 RESPONSIBILITY OF USING AGENCY 

The using agency must notify the vendor promptly when 
atent or other defects arc discovered. In the event the vendor 



ails to remedy the condition reported and the contract was 



handled by ITS, the matter shall be referred to ITS. 

History Note: Authority G.S. I43B-472.65: 
Temporary Adoption Eff. January l_^ 2000. 

SECTION .0700 - CONTRACTS 

.0701 USE AND DESCRIPTION 

State IT contracts are binding agreements between the state 
and successful offerors to provide information technology goods 
or services in accordance with stipulated terms and conditions. 

( 1 ) Term Contracts 

(a) A term contract is a binding agreement 
between purchaser and seller to buy and sell 
certain goods or services for a period of time at 
prices established by the contract. Statewide 
term contracts consolidate normal, anticipated 
requirements of all agencies into one 
agreement and shall be handled by ITS. No 
agency may purchase goods or services 
covered by a statew ide term contract from any 
other source unless authorized by the CIO or 
designee. 

(b) A term contract shall be based upon 
competition, where available, with potential 
vendors being advised as to the actual business 
they are competing for and, if successful, the 
business they have earned. 

(c) Agencies may handle agency specific term 
contracts for use by their agency H' the 
estimated expenditure over the term of the 
contract is under their delegation and the good 
or service is not covered by a statewide term 
contract. If an agency documents to ITS a 
need to establish an agency specific term 
contract for which the expenditure over the 
term of the contract exceeds the agency's 
delegation and is not covered by a statewide 
term contract. ITS may issue a solicitation 
document for the purpose of awarding an 
agency specific term contract for use by the 
requesting agency in accordance with the 
determining factors set forth in Rule .0702 of 
this Section. 

(2) Convenience Contracts 

(a) Convenience contracts are indefinite quantity 
contracts that are awarded by ITS that may be 
used by state agencies to purchase goods or 
services ai Uie agency's discretion. 
Convenience contracts function like statewide 
term contracts, but their use by agencies is not 
mandatory. 

(b) If an agency elects not to purchase the goods or 
services it requires from an established 
convenience contract, the rules of competitive 
bidding apply to the acquisition. 

(3) Master Agreements are an agreement between a 



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vendor and the state that applies to multiple contracts 
or purchase orders that include standard terms and 
conditions. 

History Note: Authority G.S. I43B-472.65: 
Temporan' Adoption Eff. January I, 2000. 

.0702 DETERMINING FACTORS 

In determining whether a good or service will be on a 
statewide term contract. ITS shall consider such factors as 
volume, nature of the good or service, repetitiveness of use, 
relative stability of prices, and transportation costs. In 
determining whether a good or service will be on an agency 
specific term contract, the agency shall consider such factors as 
volume, nature of the product or service, repetitiveness of use, 
relative stability of prices, and transportation costs. 

Histoiy Note: Authority G.S. 143B-472.65; 
Temporaty Adoption Eff. January 1, 2000. 

.0703 EXTENSION OF CONTRACT TERMINATION 
DATES 

When in the public interest, contractors may be requested to 
extend the scheduled termination dates of contracts. 

Histoiy Note: Authority' G.S. 143B-472.65; 
Temporary Adoption Eff. January l^ 2000. 

SECTION .0800 - PARTIAL AND MULTIPLE 
AWARDS 

.0801 USE 

(a) Partial, progressive or multiple awards may be made 
where it is advantageous to the state. 

(b) Notwithstanding the necessity for awards to more than 
one supplier in the case of some indefinite quantity contracts, 
such awards shall be limited to the number of suppliers deemed 
necessary to reasonably satisfy the intended requirements. 
Quantities shall not be divided among companies on definite 
quantity requirements unless and except as provided in the 
solicitation document. 

History Note: Authority G.S. 1433-472.65: 
Tentporaiy Adoption Eff. Januan' 1, 2000. 

SECTION .0900 - WAIVER OF COMPETITION 

.0901 POLICY 

Under conditions listed in this Rule, and otherwise if deemed 
to be in the public interest by the CIO or his designee, 
competition may be waived. If the procurement is under the 
delegation of the agency, the agency may waive competition in 
conformance with this rule. If t]ie procurement is over the 
agency delegation but under the benchmark, requests for waiver 
shall be submitted to ITS for appropriate determination. 
Competition may be waived under the following conditions: 



where competition is not available; where a needed product or 
service [s available from only one source of supply; where 
emergency action is indicated; where competition has been 
solicited but no satisfactory offers received; where ! 
standardization or compatibility is the overriding consideration; 
where a donation predicates the source of supply; where 
personal or particular professional services are required; where 
a product or service is needed for a person with disabilities and 
there are overriding considerations for its use; where additional 
products or services are needed to complete an ongoing job or 
task; where a particular product or service is desired for 
educational, training, ex perimental, developmental or research 
work; where equipment is already installed, connected and in 
service, and it is determined advantageous to purchase it; where 
items are subject to rapid price fluctuation or immediate 
acceptance; where there is evidence of resale price maintenance 
or other control of prices, lawful or unlawful, or collusion on the 
part (rf companies that thwarts normal competitive procedures; 
where a purchase is being made and a price is available from a 
previous contract; where the requirement is for an authorized 
cooperative project with another governmental unit(s) or a 
charitable non-profit organization(s); and where a used item(s) 
is available on short notice and subject to prior sale. 

History Note: Authority- G.S. 1438-472.65; 
Temporary Adoption Eff. January 1. 2000. 

.0902 APPROVAL AND DOCUMENTATION 

Although competition may be waived pursuant to Rule .0901 
of this Section, the use of competition is required wherever 
practicable. Where waiver is contemplated, agencies may 
negotiate with a potential yendor(s) in an effort to acquire the 
quality of good or service needed at the best possible price, 
delivery, terms and conditions, when the expenditure is less than 
their respective benchmark or delegation. Documentation 
justifying waiving the competitive process must be attached to 
the record of this type of procurement. The procurement process 
of requesting or inviting an offer(s) shall be handled by the 
agency, including standard language terms and conditions issued 
by ITS. Under an emergency or pressing need situation, the 
procurement process requesting or inviting an offer(s) shall be 
handled by the agency, including standard language terms and 
conditions issued by ITS, unless circumstances prohibit their 
use. Negotiations may also be conducted with a potential 
vendor(s) for contracts exceeding the benchmark or delegation 
if the agency has received prior approval from ITS. All actions 
that exceed the benchmark or delegation are subject to the 
conditions of Rule . 1 102 of ttiis Subchapter. 

Histoiy Note: Authority G.S. 1438-472.65; 
Temporary Adoption Eff. Januan- 1_^ 2000. 

SECTION .1000 - MISCELLANEOUS PROVISIONS 

.1001 CONFIDENTIALITY * 

(a) The offeror may designate information as a trade secret 



« 



11 



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pursuant to G.S. 132-1.2. Only documents meeting the criteria 
of North Carolina's Trade Secret Act may be so designated 
where a document meets the Trade Secret Act requirements. 
|rrade secrets that the olferor does not wish disclosed shall he 
identil'ied on each page in boldface at the lop and bottom as 
"CONFIDENTIAL". Cost information shall not he deemed 
confidential. 



(b) To promote maximum competition and to protect the 
public competitive procedure from being used to obtain 
information that would normally not be available otherwise, the 
agency that issued the solicitation document may maintain the 
confidentiality of trade secrets, as determined by North Carolina 
law, and like information as the CIO or hjs designee or the 
agency's executive officer or his designee may determine 
necessar y to ensure the integrity of the public purchasing 
process. 

HistoiyNote: Authority G.S. l.U-1.2: I43B-472.65; 
Temporarx Adoption Eff. Jaiuiarx 1, 2000. 

.1002 PAYMENT PLANS 

Purchase contracts may provide for payment over a period of 
time. Such instances shall carry written prior approval of the 
administrative head of the agency. Administrati\'e heads and 
governing board of agencies shall see that statutory or other 
prohibitions are not violated. The intended plan of payment 
shall be included in the procurement document. 

Histoiy Note: Authority G.S. I43B-472.65; 
Temporarx Adoption Eff. Jamiarx [^ 2000. 

.1003 CHANGE IN CORPORATE STRUCTURE 

The state's contracts shall not be assigned. In cases where 
contractors are inyolved in corporate consolidations, 
acquisitions, or mergers; the agency that issued the s(ilicitation 
document resulting in the contract may negotiate agreements for 
the transfer ot' contractual obligations and the continuance of 
c ontracts within the framework of the new corporate structures. 



History Note: Authority G.S. 143B-472.65: 
Temporarx Adoption Eff. Januarx 1, 2000. 

. 1 004 PURCHASING FROM OR THROUGH AGENCY 
EMPLOYEES 

Every reasonable effort shall be made to avoid making 
purchases from or through employees of any agency. Prior 



written approval from the CIO or his designee is required before 



doing business with such personnel. In deciding whether to 



grant approval, the CIO or his designee shall consider the type 



of item or service needed, the prevailing market conditions, 
whether competition is available, the cost involved, and the 



effects of doing business with the employee. 



HistoiyNote: Authority G.S 1433-472.65: 
Temporarx Adoption Eff. Januarx l_^ 2000. 



.1005 ANTITRUST VIOLATIONS 

In instances of' identical offers, or where there are otherwise 
indications of collusion, awards may be made in a manner 
intended to discourage or prevent its continuance as deemed to 
represent the state's best interest. The agency that issued the 
solicitation documents shall report suspected antitrust violation 
to appropriate law enforcement authorities. 

HistoiyNote: Authority G.S. 143B-472.65; 
Temporaiy Adoption Eff. Januarx I. 2000. 

.1006 COOPERATIVE PURCHASING 

Where an agency or ITS is a participant in a cooperative 
project with another governmental entity or with a non-profit 
organization, goods and services necessary to the project shall 
be acquired according to rules in this Chapter. However, if the 
interest of the state would be better served by one o^' the 
following acquisition methods, the CIO or his designee may 
authorize that acquisition method to be used: 

(1 ) by making or authorizing acquisition on behalf of 
such governmental activity (k non-profit organization; 
or 

(2) by authorizing acquisition on the state's behalf under 
the provisions of another state or another 
governmental entity, provided due consideration is 
given by the CIO or his designee to the differences in 
purchasing rules, regulations, and procedures of the 
contracting entity. 

Histoiy Note: Authority G.S. I43B-472.65: 
Temporarx Adoption Eff. Januarx I, 2000. 

.1007 RESERVED FOR FUTURE CODIFICATION 

.1008 BOARD OF AWARDS 

(a) When the dollar value of a contract for the purchase, 
lease, or lease/purchase of IT goods exceeds the benchmark, the 
Board of Awards (Board) shall canvass ITS' recommended 
action. This also includes reporting of emergency and pressing 
need purchases over the benchmark. The Secretary may elect to 
proceed with the award of a contract without a recommendation 
of the Board in cases of emergencies or in the event that the 
Board is not available. ITS shall submit the Board's 
recommendation (award, cancellation, approval, negotiation, 
etc.) to the Secretary. The Secretary may either concur with the 
recommendation of the Board by awarding contracts or 
approving other recommended action or take other action as 
deemed necessary. 

(b) Exemptions: Review by the Board of Awards and 
approval by the Secretary is not required for the following 
purchase actions: exemption by statute, by rule, by special 
delegation, or where one agency is buying from another agency 
or through the Stale Surplus Property Agency or the State 
Agency for Federal Surplus Property. 



Histoiy Note: 
472.65: 



AuthoritxG.S 143-52.1: 1438-472.63: 143B- 



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Temporaiy Adoption Eff. Jaiutai-y L^ 2000. 

.1009 PROTEST PROCEDURES 

(a) To ensure fairness to aU offerors and to promote open 
competition, agencies and ITS shall actively and consistently 
respond to an offeror's protest over contract awards. 

(h) This Rule applies to contracts with an estimated value 
over ten thousand dollars ($10,000). Agencies may establish 
procedures to handle protests by offerors with less value . 

(c) When an offeror wants to protest a contract awarded by an 
agency over ten thousand dollars ($10,000) in value, the agency 
and the offeror shall comply with the following: 

(1) The offeror shall submit a written request for a protest 
meeting to the agency's executive officer or his 
designee within 15 calendar days from the date of 
contract award. The executive officer shall furnish a 
copy of the written request to the ITS Chief 
Procurement Officer (CPO) within ten calendar days 
of receipt. The offeror's request shall contain specific 
reasons and any supporting documentation regarding 
why there is a concern with the award. If the request 
does not contain this information or the executive 
officer determines that a meeting would serve no 
purpose, then the executive officer, within ten 
calendar days from the date of receipt, may respond in 
writing to the offeror and refuse the protest meeting 
request. A copy of the executive officer's letter shall 
be forwarded to the CPO. 



ID 



If the protest meeting is granted, the agency's 
executive officer shall attemp t to schedule the 
meeting within 30 calendar days after receipt of the 
letter, or as soon as possible thereafter. Within 10 
calendar days from the date of the protest meeting, the 
executive officer shall respond to the offeror in 
writing with an agency decision. A copy of the 
executive officer's letter shall be forwarded to the 
CPO. 



(d) When an offeror wants to protest a contract awarded by 
ITS or the Secretary that is over ten thousand dollars ($10,000) 
in value, the CPO and the offeror shall comply with the 
following: 

(1) The offeror shall submit a written request for a protest 
meeting to the CPO within 1 5 calendar days from the 
date of contract award. The offeror's request shall 
contain specific reasons and any supportive 
documentation regarding why there is a concern with 
the award. If the request does not contain this 
information or the CPO determines that a meeting 
would serve no purpose, then the CPO, within ten 
calendar days from the dale of receipt of the letter, 
may respond in writing to the offeror and refuse the 
protest meeting request. A copy of the CPO's letter 
shall be forwarded to the ITS hearing officer. 

(2) If the protest meeting is granted, the CPO shall 
attempt to schedule the meeting within 30 calendar 
days after receipt of the letter, or as soon as possible 



thereafter. Within 10 calendar days from the date of 
the protest meeting, the CPO shall respond to the 
offeror in writing with a decision. A copy of the^ 
decision shall be forwarded to the ITS hearing officer. w 

(e) If an offeror desires further administrative review after 
receiving a decision under Paragraph fc) or (d) of this Rule, the 
protesting party may request a final decision by the Secretary in 
accordance with Article 3 A of G.S. I SOB. When further 
administrative review involves a contract awarded by an agency 
that is over ten thousand dollars ($10,000) in value, the agency 
shall be a party in further review processes. 

(f) The signature of an attorney or party on a request for 
protest constitutes a certification by the si gner that the signer has 
read such document; that to the best of the signer's knowledge, 
information, and belief formed after reasonable inquiry, it is well 
grounded in fact and is warranted by existing law; and that it is 
not interposed for any improper purpose such as to harass, cause 
unnecessary delay or needless increase in the cost of the 
procurement or of the litigation. If a protest is determined by the 
hearing officer or any subsequent appellate court proceeding to 
be frivolous or to have been filed without any substantial basis 
or reasonable expectation to believe that the protest was 
meritorious, the CIO, upon motion or upon his own initiative, 
may impose upon the person who signed it, a represented party, 
or both, prohibition upon the party from participation in any IT 
solicitation or award for a period of one year. Notification to the 
affected party shall be in writing. 



History Note: Authority G.S. 143B-472.65: 150B-38: 
Temporaiy Adoption Eff. January 1_^ 2000. 

.1010 RIGHT TO HEARING 

Whenever the Department acts in such a way as to affect the 
rights, duties, or privileges of a party, the party may appeal for 
a final decision by the Department in accordance with this 
Section and Article 3A of G.S. I50B. 

History Note: Authority G.S. 150B-38: 
Temporary Adoption Eff. January ]_^ 2000. 



%\ 



.1011 REQUEST FOR HEARING 

(a) A request for an administrative hearing under Rule .1010 
of this Section must be in writing and shall contain the following 
information: 



II! 
(2} 
(3] 



name and address of the person requesting the 

hearing, 

a concise statement of the departmental action being 

challenged, 

a concise statement of the manner in which the 

petitioner is aggrieved, and 

(4) a clear and specific demand for a public hearing. 

(b) The request for hearing shall be filed with: Secretary of 

Commerce, AllhNTION: ITS Hearing Officer, Information 

Technology Services Division, N.C. Department of Commerce, i 

4 1 05 Mail Service Center, Raleigh, North Carolina 27699-4 1 05. ^ 



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Histoty Note: Authority G.S. 150B-38(a): 
Tempora/T Adoption Eff. Jaiiiian- 1 . 2000. 

kl012 DEFINITIONS 

' The definitions contained in G.S. 150B-2 are incorporated in 
this Section by reference. In addition to those definitions, the 
foliovvini; definitions apply to this Section: 

(1) "File or fihng" means to place or the placing ot' the 
paper or item to be filed into the care and custody of 
the hearing olTicer. and acceptance thereof by him. 
All documents filed with the hearing officer, except 
exhibits, shall be in duplicate in letter size 8 1/2" by 
11". 

(2) "Hearing otTicer" means the Secretary, a member of 
the Secretary'sstaff appointed by the Secretary under 
G.S. 15QB-4(). or an administrative law judge 
assigned under G.S. 150B-40 . 

(3) "Party" means the Department, the offeror, the agency 
or an intervenor who qualifies under Rule . 1 024 of 
this Section. 

(4) "Service or serve" means personal delivery or. unless 
otherwise provided by law or rule, delivery by first 
class United States Postal Service mail or a licensed 
overnight express mail service, postage prepaid and 
addressed to the person to he served at his or her last 
known address. A certificate of service by the person 
making the service shall he appended to every 
document requiring service under this Section. 
Service by mail or licensed overnight express mail is 
complete upon placing the item to be served, enclosed 
in a wrapper addressed to the person to be served, in 
an official depository of the United States Postal 
Service; or postage prepaid and wrapped in a wrapper 
addressed to the person to be served, to an agent of 
the overnight express mail service . 

Histoty Note: Authority G.S. 150B-40; 
Tcinporan- Adoption Eff. Jamiaiy 1, 2000. 



.1013 GENERAL PROVISIONS 

The following general provisions apply to this Section: 
(1 ) The Rules of Civil Procedure as contained in G.S. 
I A-1 and the General Rules of Practice for the 



ill 
ill 



Superior and District Courts as authorized bj G.S. 
7A-34 and found m the Rules Volume of the North 
Carolina General Statutes apply m contested cases 
before the Hearing Officer unless another specific 
statute or rule provides otherwise. 
The Department may supply, at the cost for copies, 
forms for use in contested cases. 
Every document filed with the hearing officer shall be 
signed by the author of the document, and shall 
contain his name, address, telephone number, and 
North Carolina State Bar number if the author is an 
attorney. An original and one copy of each document 
shall be filed. 



(4) Except as otherwise provided by statute, the rules 



contained in this Section govern the conduct of 
contested case hearing under Article 3 of G.S. 1 506. 

(5) Hearings shall be conducted, as nearly as practical, in 
accordance with the practice in the Trial Division of 
the General Court of Justice. 

(6) This Section and copies of ail matter adopted by 
reference in this Section are available frcmi the 
Department at cost. 

(7) The rules of statutory construction contained in 
Chapter 12 of tfie General Statutes apply in the 
construction of this Section. 

(8) Unless otherwise provided in a specific statute, time 
cotnpulalions in contested cases under this Section are 
governed by G.S. 1 A- 1 . Rule 6. 

History Note: Authority G.S. 150B-38(h): 
Temporary Adoption Eff. Januarx l_^ 2000. 

.1014 ORDER FOR PREHEARING STATEMENTS 

The hearing officer may serve all parties with an order for 
prehearing statements together with, or after service of. the 
notice of hearing. Every party thus served shall, within 30 days 
after service, file the requested statements setting out the party's 
present position on the following: 

( I ) The nature ot' tfie proceeding and the issues to he 

resolved; 

A brief statement of the facts and reasons supporting 

the party'sposition on each matter in dispute; 

A hst of proposed witnesses with a brief description 

of his or fier proposed testimony ; 

A description of what discovery, if any, the party will 

seek to conduct prior to the contested case hearing 

and an estimate of the time needed to complete 

discovery; 

Venue considerations ; 

Estimation of length of the hearing: 



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(5) 

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The name, address, and telephone number of the 
party'sattorney. H" any; and 
Other special matters. 



Histoiy Note: Authority G.S. 150B-38(li): 
Temporal^ Adoption Eff. Januarx I_^ 2000. 

.1015 DUTIES OF THE HEARING OFFICER 

In conjunction with the powers in this Section, in G.S. 143B. 
and in Article 3 A of G.S. 1 50B, the hearing oftlcer shall perform 
the following duties, consistent with law: 
( 1 ) Hear and rule on motions; 
Grant or deny continuances; 

Issue orders regarding prehearing matters, including 
directing the appearance of the parties at a prehearing 
conference; 

(4) Examine witnesses when deemed to be necessary to 
make a complete record and to aid in the full 
development of material facts in the case; 

(5) Make preliminary, interlocutory, or other orders as 
deemed to be appropriate; 



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(6) Recommend a summary disposition of the case or any 
part thereof when there js no genuine issue as to any 
material fact or recommend dismissal when the case 
or any part thereof has become moot or for other 
reasons; and 

(7) Apply sanctions in accordance with Rule .1022 of this 
Section. 

History Note: Authority G.S. ]50B-38(li); 
Temporary Adoption Eff. Janiian' 1. 2000. 

.1016 CONSENT ORDER; SETTLEMENT; 
STIPULATION 

Informal disposition may be made of a contested case or an 
issue jn a contested case by stipulation, agreement, or consent 
order at any time during the proceedings. Parties may enter into 
such agreements on their own or may ask for a settlement 
conference with the hearing officer to promote consensual 
disposition of the case. 

Histoiy Note: Authority G.S. 150B-38{I}); 
Temporarx Adoption Eff. Jamiar\ 1, 2000. 

.1017 SETTLEMENT CONFERENCE 

(a) A settlement conference is for the primary purpose of 
assisting the parties in resolving disputes and for the secondary 
purpose of narrowing the issues and preparing for hearing. 

(b) Upon the request of any party, the hearing officer shall 
assign the case to another hearing officer appointed by the 
Secretary under G.S. l50B-38(h) for the purpose of conducting 
a .settlement conference. Unless the parties and the other hearing 
officer agree, a unilateral request for a settlement conference 
does not constitute good cause for a continuance. The 
conference shall be conducted at a time and place agreeable to 
all parties and the hearing officer, h shall be conducted by 
telephone \i any party would be required to travel more than 50 
miles to attend, unless that party agrees to travel to the location 
set for the conference. If a telephone conference is scheduled, 
the parties must be available by telephone at the time of the 
conference. 

(c) All parties shall attend or be represented at a settlement 
ccMiference. Parties or their representatives shall be prepared to 
participate jn settlement discussions. 

(d) The parties shall discuss the possibility ot" settlement 
before a settlement conference it' they believe that a reasonable 
basis for settlement exists. 

(e) At the settlement conference, the parties shall be prepared 
to pro\ide information and to discuss all matters required in 
Rule .1014 oi' this Section. 

(f) If. following a settlement conference, a settlement has not stipulating and agreeing to 



Histoiy Note: Aittltority G.S. I50B-38(h); 
Temporarx Adoption Eff. Januarx I, 2000. 

.1018 PREHEARING CONFERENCE § 

(a) The purpose of the prehearing conference is to simplify 
the issues to be determined; to obtain stipulations in regard to 
foundations for testimony or exhibits; to obtain stipulations of" 
agreement on undisputed facts or the application of particular 
laws; to consider the proposed witnesses for each party; to 
identify and exchange documentary evidence intended to be 
introduced at the hearing; to determine deadlines for the 
completion of any discovery; to establish hearing dates and 
locations if not previously set; to consider such other matters 
that may be necessary or advisable; and, jf possible, to reach a 
settlement without the necessity for further hearing. Any final 
settlement shall be set forth in a settlement agreement or consent 
order and made a part of the record. 

(b) Upon the request of any party or upon the hearing 
officer' sown motion, the hearing officer may hold a prehearing 
conference before a contested case hearing. The hearing officer 
may require the parties to fije prehearing statements in 
accordance with Rule .1014 of this Section. A prehearing 
conference on tlie simplification of issues, amendments, 
stipulations, or other matters may be entered on the record and 
may be made the subject of an order by the hearing officer. 
Venue for purposes of a prehearing conference shall be 
determined in accordance with G.S. l50B-38(e). 



Histoiy Note: Authority G.S. l50B-38(h}; 
Temporarx Adoption Eff. Januarx I, 2000. 

.1019 CONSOLIDATION OF CASES 

(a) The hearing officer may order a joint hearing of any 
matters at issue in contested cases involving common questions 
of law or fact or multiple proceedings involving the same or 
related parties, or may order the cases consolidated or make 
other orders to reduce costs or delay in the proceedings. 

(b) A party requesting consolidation shall serve a petition for 
consolidation on al] parties to the cases to be consolidated and 
shall file the original with the hearing officer, together with a 
certificate of service showing service on aM parties as herein 
required. Any party objecting to the petition shall serve and file 
his objections within 10 days after service of the petition for 
consolidation. 

(c) Upon determining whether cases should be consolidated, 
the hearing officer shall serve a written order on all parties that 
contains a description of the cases for consolidation and the 
reasons for the decision. 

(d) Nothing contained in this Rule prohibits the parties from 

consolidation, which shall be 



V 



been reached but the parties have reached an agreement on any 
facts or other issues, the hearing officer presiding over the 
settlement conference shall issue an order confirming and 
apprcning. H' necessary, those matters agreed upon. The order is 
binding on the hearing officer who is assigned to hear the case. 



granted upon submittal of a written stipulation, signed by every 
party, to the hearing officer. 

(e) Following receipt of a notice of or order for consolidation. 
any party may petition for severance by serving it on al] otheri 
parties and filing with the hearing officer at least seven days 
before the first scheduled hearing date. If the hearing officer 



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finds that the consolidation will prejudice any party, he shall 
order the severance or other relief that will prevent the prejudice 
from occurring. 



'Histoiy Note: Authority G.S. 150B-38(h): 
Temporarx Adoption Eff. Jamtarx i^ 2000. 

.1020 DISCOVERY 

(a) Discovery methods are means designed to assist parties in 
preparing to meet their responsibilities and protect their rights 
during hearings without unduly delaying, burdening, or 
complicating the hearings process and with due regard to the 
rights and responsibilities of other parties and persons affected. 
Accordingly, parties shall exhaust all less formal opportunities 
to obtain discoverable material before utilizing this Rule. 

(b) Any means of discovery available pursuant to the North 
Carolina Rules of Civil Procedure, G.S. 1 A-1, is allowed. If the 
party from whom discovery is sought objects to the discovery, 
the party seeking the discovery may file a motion with the 
hearing officer to obtain an order compelling discovery. In the 
disposition of the motion, the party seeking discovery shall have 
the burden of showing that the discovery is needed lor the 
proper presentation of the party's case, is not for purposes of 
delay, and that the issues in controversy are significant enough 
to warrant the discovery. In ruling on a motion for discovery, the 
hearing officer shall recognize all privileges recognized at law. 

(c) When a party serves another party with a request for 
discovery, that request need not be filed with the hearing officer 
jut shall he served upon all parties. 

(d) The parties shall immediately commence to exchange 
information voluntarily, to seek access as proyided by law to 
public documents, and to exhaust other informal means of 
obtaining discoverable material. 



(e) All discovery shall be completed no later than the first day 
of the hearing. The hearing officer may shorten or lengthen the 
period for discovery and adjust hearing dates accordingly and, 
at the discretion of the hearing officer, allow discovery during 
the pendency of the hearing. 

(f) No later than 1 5 days after receipt of a notice requesting 
discovery, the receiving party shall: 

(1) move for relief from the request; 

(2) provide the requested information, material or access; 
or 

(3) offer a schedule for reasonable compliance with the 
request. 

(g) Sanctions for failure of a party to comply with an order of 
the hearing officer made pursuant to this Rule shall he as 
provided for by G.S. I A- 1 , Rule 37, to the extent that a hearing 



officer may impose such sanctions, and Rule .1022 ot' this 



Section. 



Histoiy Note: Authority G.S. l50B-38{h): 
Tempo ran- Adoption Eff. Januar'\- /^ 2000. 



1021 SUBPOENAS 

The cost of service, fees. 



witness appears. A party seeking an order imposing sanctions 
for failure to comply with any subpoena issued under this Rule 
must prove proper service of the subpoena. 

Histoty Note: Authority- G.S. 150B-38(h): 
Temporan- Adoption Eff. Januarx I_^ 2000. 

.1022 SANCTIONS 

(aj If a party fails to appear at a hearing or fails to comply 
with an interlocutory order of the hearing officer, the hearing 
officer may: 

(I ) Find that the allegations of or the issues set out in the 
notice oi" hearing or other pleading may be taken as 
true or deemed to be proved without further evidence; 
Dismiss or grant the motion or petition; 
Suppress a claim or defense; or 
Exclude evidence. 



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(b) In the event that any party, attorney at law, or other 
representative of a party engages in behavior that obstructs the 
orderly conduct of proceedings or would constitute contempt if 
done in the General Court ot' Justice, the hearing officer may 
enter a show cause order returnable in Superior Court for 
contempt proceedings in accordance with G.S. 150B-40(c)(6). 

Histoiy Note: Authority G.S. l50B-38(h): 
Temporan- Adoption Eff. Januan- 7^ 2000. 

.1023 MOTIONS 

(a) Any application to the hearing officer for an order shall be 
by motion, which shall he [n writing unless made during a 
hearing, and must be filed and served upon all parties not less 
than 10 days before the hearing, if any. is to be held either on the 
motion or the merits of the case. The nonmoving party has jO 
days after the date ot' service ot' the motion to file a response, 
which must be in writing. Motions practice in contested cases 
before the hearing officer pursuant to Article 3 of G.S. 1 50B are 
governed by Rule 6 ot' tfie General Rules of Practice for the 
Superior and District Court. 

(b) Ifany party desires a hearing on the motion, he shall inake 
a request for a hearing at tlie time ot' the filing of hns motion or 
response. A response shall set forth the nonmoving party's 
objections. All motions in writing shall be decided without oral 
argument unless an oral argument is directed by the hearing 
officer. When oral argument is directed by the hearing officer, 
a motion shall be considered submitted for disposition at the 
close of the argument. A hearing on a motion shall be directed 
by the hearing officer only ii' it is determined that a hearing is 
necessary to tfie development of a fuH and complete record on 
which a proper decision can be made. All orders on such 
motions, other than those made during the course of a hearing, 
shall be in writing and shall lie served upon all parties of record 
not less than five days before a hearing, H' any, is held. 

Histoty Note: Authority G.S. I50B-38(h); 
Temporarx Adoption Eff. Januan 1. 2000. 



and expenses of any witnesses 



subpoenaed shall be paid by the party at whose request the .1024 INTERVENTION 



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(a) Any person not named in the notice of hearing who 
desires to intervene in a contested case as a party shall file a 
timely motion to intervene and shall serve the motion upon ail 
existing parties. Timeliness shall be determined by tlie hearing 
officer in each case based on circumstances at the time of filing. 
The motion shall show how the movant's rights, duties, or 
privileges may he determined or affected by the contested case; 
shall show how the movant may be directly affected by the 
outcome or show that the movant'sparticipation is authorized by 
statute, rule, or court decision; shall set forth the grounds and 
purposes for which intervention is sought; and shall indicate 
movant'sstatutory right to intervene if one exists. 

(b) Any party may object to the motion for intervention by 
filing a written notice of objections with the hearing officer 
within five days after service of the motion it" there is sufficient 
time before the hearing. The notice of objection shall state the 
party'sreasons for objection and shall be served upon all parties. 
if there is insufficient time before the hearing for a written 
objection, the objection may be made at the hearing. 

(c) When the hearing officer deems it to be necessary to 
develop a fuU record on the question of intervention, he may 
conduct a hearing on the motion to determine specific standards 
that will apply to each intervenor and to define the extent of 
allowed intervention. 

(d) The hearing ofTicer shall allow intervention upon a proper 
showing under this Rule, unless he finds that the movant's 
interest is adequately represented by one or more parties 
participating in the case or unless intervention is mandated hy_ 
statute, rule, or court decision. An order allowing intervention 
shall specify the extent of participation permitted the intervenor 
and shall state the hearing officer' sreason. An intervenor may be 
allowed to: 

(1) File a written brief without acquiring the status of a 
party; 

Intervene as a party with all the rights of a party; or 
Intervene as a party with all the rights of a party but 
limited to specific issues and to the means necessary 
to present and develop those issues. 



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Histon- Note: Authority G.S. l50B-38{h): 
Tempormy Adoption Eff. Jamtar\ 1, 2000. 

.1025 CONTINUANCES 

(a) As used in this Rule, "good cause" includes death or 
incapacitating illness of a party, representative, or attorney of a 
party, a court order requiring a continuance; lack of proper 
notice of the hearing; a substitution of the representative or 
attorney of a party if the substitution is shown to be required; a 
change in the parties or pleadings requiring postponement; and 
agreement for a continuance by all parties if either more time is 
clearly necessary to complete mandatory preparation for the 
case, such as authorized discovery, and the parties and the 
hearing officer have agreed to a new hearing date or the parties 
have agreed to a settlement of the case that had been or is likely 
to be approved by the final decision maker. 

(b) As used in this Rule, "good cause" does not include: 



intentional delay, unavailability of counsel or other 



representative because of engagement in another judicial or 
administrative proceeding unless all other members of the 
attorney's or representative's firm familiar with the case areg 
similarly engaged; unavailability of a witness if the witness' 
testimony can be taken by deposition; or failure of the attorney 
or representative to properly utilize the statutory notice period to 
prepare for the hearing. 

(c) A request for a continuance of a hearing shall be granted 
upon a showing of good cause. Unless time does not permit, a 
request for a continuance of a hearing shall be made in writing 
to the hearing officer and shall be served upon all parties of 
record. In determining whether good cause exists, due regard 
shall be given to the ability of the party requesting a continuance 
to proceed effectively without a continuance. A request for a 
continuance filed within five days before a hearing shall be 
denied unless the reason for the request could not have been 
ascertained earlier. 

(d) During a hearing, if it ap pears in the interest of justice that 
further testimony should be received and sufficient time does not 
remain to conclude the testimony, the hearing officer shall either 
order the additional testimony taken by deposition or continue 
the hearing to a future date for which oral notice on the record 
is sufficient 



(e) A continuance shall not be granted if granting it would 
prevent the case from being concluded within any statutory or 
regulatory deadline. 



Histoiy Note: Authority G.S. ]50B-38(h); 
Temporary Adoption Eff. Jamiarx 1, 2000. 



<l 



.1026 RIGHTS AND RESPONSIBILITIES OF 
PARTIES 

(a) A party has the right to present evidence, rebuttal 
testimony, and argument with respect to the issues of law and 
policy, and to cross-examine witnesses, including the author of 
a document prepared by, on behalf ofj or for use of the 
Department and offered in evidence. 

(b) A party shall have all evidence to be presented, both oral 
and written, available on the date for hearing. Requests for 
subpoenas, depositions, or continuances shall be made within a 
reasonable time after their needs become evident to the 
requesting party. In cases when the hearing time is expected to 
exceed one day, the parties shall be prepared to present their 
evidence at the date and time ordered by the hearing officer or 
agreed upon at a prehearing conference. 

(c) The hearing officer shall send co pies of all orders or 
decisions to all parties simultaneously. Any party sending a 
letter, exhibit, brief, memorandum, or other document to the 
hearing officer shall simultaneously send a copy to all other 
parties. 

(d) All parties have the continuing responsibility to notify the 
hearing officer of their current addresses and telephone numbers. 

(e) A party need not be represented by an attorney. If a party 
has notified other parties of that party's representation by an' 
attorney, all communications shall be directed to that attorney 



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(0 With the approval of the hearing officer, any person may 
offer testimony or other evidence relevant to the case. Any 
nonparty offering testimony or other evidence may be 

I puestioned by parties to the case and by the hearing officer. 

' Ig] Before issuing a recommended decision, the hearing 
officer may order any party to submit proposed findings of fact 
and written arguments. Before issuing a final decision, the 
hearing officer may order any party to submit proposed findings 
of fact and written arguinents. 

Histoiy Note: Aiithorin G.S. 150B-38(h): 
Teiiiporan- Adoption Eff. Janiiarx 1, 2000. 

.1027 WITNESSES 

Any party may be a witness and may present witnesses on the 
party's behalf at the hearing. All oral testimony at the h earing 
shall be under oath or affirmation and shall be recorded. At the 
request of a party or upon the hearing officer's own motion, the 
hearing officer may exclude witnesses from the hearing room so 
that they cannot hear the testimony of other witnesses. 

Histon- Note: Aiithorit}- G.S. 150B-38(hj; 
Temporarx Adoption Eff. Januarx L^ 2000. 

.1028 EVIDENCE 

(a) The North Carolina Rules of Evidence as found in G.S. 
8C govern in all contested case proceedings, except as provided 
otherwise in this Section and G.S. 150B-41. 

(b) The hearing officer may admit all evidence that has 
probative value. Irrelevant, incompetent, immaterial, or unduly 
repetitious evidence shall be excluded. The hearing officer may. 
in his di scretion, exclude any evidence ]t' its probative value is 
substantially outweighed by the risk that its admission will 
require undue consumption of time or create substantial danger 
of undue prejudice or confusion. 

(c) Contemporaneous objections by a party or a party's 
attorney are not required in the course of a hearing to preserve 
the right to object to the consideration of evidence by the hearing 
officer in reaching a decision or by the court upon judicial 
review. 



(d) All evidence to be considered hi tfie case, including all 
records and documents or true and accurate photocopies thereof, 
shall be offered and made a part of the record in the case. Except 
as provided in Paragraph (f) of thus Rule, factual information or 



evidence that is not offered shall not be considered in the 



determination of tfie case. Documentary evidence incorporated 



by reference may be admitted only ff the materials so 
incorporated are available for examination by the parties. 



(e) Documentary evidence in llTe form of copies or excerpts 
may be received in the discretion of tlie hearing officer or upon 



agreement of the parties. Copies of a document shall be received 



to tlie same extent as tlie original document unless a genuine 
question is raised about the accuracy or authenticity of tlie copy 



or. under the circumstances, it would be unfair to admit the copy 



instead of the original 



(0 The hearing officer may take notice of judicially 
:ognizable facts by entering a statement of tJTe noticed fact and 



its source into the record. Upon a timely request, any party shall 
be given the opportunity to contest the facts so noticed through 
submission of evidence and argument. 

(g) A party may call an adverse party; or an officer, director, 
managing agent, or employee of tlie state or any local 
government, of a public or private corporation, or of a 
partnership or association or body politic that is an adverse 
party, and may interrogate that party by leading questions and 
may contradict and impeach that party on material matters in all 
respects as U" that party had been called by the adverse party. 
The adverse party may tie examined by that party 'scounsel upon 
the subject matter of that party's examination in chief under the 
rules applicable to direct examination, and may tie cross- 
examined, contradicted, and impeached by any other party 
adversely affected by the testimony. 

Histoiy Note: Authority G.S. 150B-38(h): 
Temporarx Adoption Eff. Januarx ]_^ 2000. 

.1029 OFFICIAL RECORD 

(a) The hearing officer may, consistent with law, order part 
or all of an official record sealed. 



(b) The official record shall be prepared in accordance with 
G.S. 150B-42. 



(c) Contested case hearings shall tie recorded either by a 
recording system or a professional court reporter using 
stenomask or stenotype. 

(d) Transcript costs incurred by the Department shall be 
charged to or apportioned equally among the party or parties 
requesting a transcript. 

(el Any other costs incurred by the Department when using 
a professional court reporter shall be charged to or apportioned 
equally among the requesting party or parties. 

(f) A 24-hour cancellation notice is required in all cases. The 
party or parties responsible for the cancellation shall be liable for 
any cancellation fees. 

(g) Transcripts of proceedings during which oral evidence is 
presented shall be made only upon request of a party. Transcript 
costs shall include the cost of an original for the Department. An 
attorney requesting a transcript on behalf oi" a party is a 
guarantor of payment of the cost. Cost shall be determined under 
supervision of tlie hearing officer who, hi eases deemed to be 
appropriate by him, may require an advance security deposit to 
cover the prospective cost. The security deposit shall be applied 
to the actual cost and any excess shall be returned to the party 
that submitted it. 

(h) Copies of tapes are available upon written request at a 
cost of five dollars ($5.00) per tape. 

(i) Copies of Department hearing tapes or Non-Department 
certified transcripts from those tapes are not part of the official 
record. 

Histoiy Note: Authority' G.S. I50B-38fh): 
Teniporan- Adoption Eff. Januarx 1^ 2000. 

.1030 DEFAULT PROCEEDINGS; DEBARMENT 

(a) The agency that issued the solicitation document resulting 



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in the conlrucl may 11 nd a contractor in default of contract for gained by handling a particular acquisition through ITS. 



failing to perform in accordance with the contract requirements, 
terms and conditions. If a contractor is found in default of 
contract, the agency that issued the solicitation document 
resulting in the contract may take action, immediate if necessary. 
to purchase the needed goods or seryices on the open market and 
charge any additional cost for the goods or seryices and expense 
for doing so to the defaulting contractor. If an agency finds a 
contractor in default, such action and the circumstances shall be 
reported by the agency to ITS in writing. This does not limit any 
other remedies that may be ayailable to the state or agency. 

(b) ITS may remoye the contractor from any distribution lists 
that may be utilized and debar the contractor from doing IT 
procurements with the state for a period a period of one year. 
ITS shall notify any contractor of debarment action in writing. 

History Note: Authority G.S. 143B-472.65: 
Temporary Adoption Eff. Jamiarx 1 , 2000. 

.1031 FAITHFUL PERFORMANCE 

(a) A bond, or other means of ensuring faithful performance, 
may be required of the contractor at the contractor'sexpense. 

(b) Liquidated damages may be proyided for in the contract. 
as a means of ensuring faithful performance from the contractor. 

(c) The agency may hold as a retainage a percentage of the 
contract yalue to be remitted upon final acceptance by the 
agency. 

(d) The agency may withhold fmal payment contingent on 
acceptance of the final deliyerable. 

Histoiy Note: Authority G.S. 143B-472.65: 
Temporarx Adoption Eff. Januarx I, 2000. 

SECTION .1100 - EXEMPTIONS, EMERGENCIES, 
AND SPECIAL DELEGATIONS 

.1101 EXEMPTIONS 

(a] It js not mandatory for items listed in this Rule to be 
purchased through the ITS procurement office. 
(1) Packaged copyrighted software products: 

Services proyided by individuals through direct 

employment contracts with the state; 

Services that are merely incidental to the purchase of 

supplies, materials, or equipment such as installation 

services: 

(4) Personal services provided by a professional 
individual (person) on a temporary or occasional 
basis: and 

(5) Services provided directly by an agency of the state, 
federal or local government, or their employees when 
performing the service as part of their normal 
governmental function. 



Hi.^toiy Note: Authority G.S. 143B-472.65; 

Temporary Adoption Eff. Januarx 1, 2000. i 

.1102 EMERGENCIES 

(a) An agency may make purchases of goods or seryices in 
the open market iji cases of emergency or pressing need. For 
this purpose, a pressing need is one arising from unforeseen 
causes including, but not limited to. delay by contractors, delay 
in transportation, breakdown in machinery, or unanticipated 
volume of work. Emergencies are defined as situations that 
endanger lives, property or the continuation of a vital program. 
as determined by the agency executive officer, and that can be 
rectified only by immediate, on-the-spot purchases or rental of 
goods or services. 



(h) Agencies may negotiate with a potential yendor(s) in an 
effort to acquire the quality of good or service needed at the best 
possible price, delivery, terms and conditions. A solicitation 
document requesting or inviting an offer(s) shall be issued, 
including standard language terms and conditions issued by ITS. 
unless circumstances prohibit their use. 

(e) When emergency or pressing need action is necessary. 



12] 



and the expenditure is over the delegation, prior verbal approval 
shall be obtained from ITS \j_ time permits. Subsequently, 
whether or not such prior approval was possible, if the 
expenditure is over the delegation, an explanation of the 
emergency or pressing need purchase shall be reported in 
writing to ITS. ITS shall report such purchases of goods thanHj 
exceed the benchmark to the Board as a matter of record. ^W 



Histoiy Note: Autlwrity G.S. 143-52.1: 143B-472.65: 
Temporarx Adoption Eff. Januarx 1, 2000. 

.1103 SPECIAL DELEGATIONS 

(a) The CIO or fus designee may authorize, by special 
delegation, any agency to purchase specific goods or services 
even If the expenditure exceeds the benchmark. Every such 
delegation shall be in writing and made a matter of record. 

(b) The CIO or his designee may require that offers received 
under such delegations be sent to ITS for determination of the 
successful vendor. 



(c) ITS shall periodically review its special delegations of 
purchase to ascertain the availability of these goods or services 
and their continued suitability for delegation. 

Histoiy Note: Authority G.S. 143B-472.65: 
Temporarx Adoption Eff. Januai-x ]_^ 2000. 

.1 104 GENERAL DELEGATIONS 

The general purchasing delegation for agencies shall be not 
more than twenty five thousand dollars ($25.000) unless specific 
(b) In addition to products and services noted in Paragraph (a) authorization is given by the CIO. The CIO may lower or raise 



of this Rule, the CIO or his designee may exempt other products 
and services from purchase through ITS provided the CIO or his 
designee determines that no price or quality advantage would be 



this general delegation for a specific agency, up to the i 
benchmark established by the Secretary, upon consideration of 
the agency's overall capabilities, including staff resources, I® 



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organizational structure, training, purchasing compliance 

reviews, electronic communication capabilities, and audit 

reports. IT an agency wishes to obtain an increase jn its general 

l yelegation. ]l shall submit a request in writing, outlining its 

^overall capabilities, to the CIO for the ClO'sconsideration. 

Histoiy Note: Authority G.S. I43B-472.65: 
Temporary Adoption Eff. Janiiarx l_^ 2000. 

.1105 COMPLIANCE REVIEWS 

(a) ITS shall be responsible lor compliance reviews on 
purchasing practices at al] agencies. TTie purpose of the 
compliance review shall be for determining if an agency is 
complying with ITS' purchasing statues and rules adopted 
thereunder, and whether it should continue having the same level 
of delegatit)n. have it reduced, or if it qualifies for an increase. 
A copy of the compliance report shall be provided to the 
agency's executive officer, the State Auditor, and the State 
Budget Officer, 

(b) ITS staff may enter the premises and obtain an agency's 
purchasing records for the purpose of the compliance review. 
The agency shall cooperate with ITS staff, providing them with 
requested records, adequate ofllce space for conducting the 
review and agency purchasing staff for discussion of purchase 
transactions. ITS shall not unnecessarily require of the agency 
any more than is needed to complete the review. 

(c) The CIO may lower, or raise if requested, an agency's 
general delegation if tJTe results oi' a compliance review by the 
:ompliance staff of ITS merit such action as determined by the 
CIO. The CIO may lower the delegation to any level, including 
the complete removal of the delegation, depending on the nature 
of any v iolations found. 

(d) ITie CIO or his designee shall provide to each agency. 
upon request. ITS' assistance in educational training for the 
agency's staff to better acquaint them with ITS' purchasing 
statutes and rules. 

Histoiy Note: Authorit}' G.S. 143B-472.65; 
Temporan' Adoption Eff. Janiian- 1, 2000. 

SECTION .1200 - RECORDS 

.1201 RECORD MAINTENANCE 

Except where state law provides to the contrary, after the 
award of a contract, the purchasing records of an agency are 
public documents, and these documents shall be maintained for 
a period of five years after the expiration date of the contract. 
Record retention shall be in accordance with G.S. 121-5. 



Histoiy Note: Authority G.S. 143B-472.65: 
Temporary- Adoption Eff. Jauuarx I. 2000. 

1202 RECORDS 

(a) The agency or ITS shall identify each paper or electronic 
contract record individually so n can be readily located and 



;ferenced. 



(b) The agency or ITS shall document all purchase 



transactions. As applicable, each paper or electronic record shall 
include: 

( 1) Requisition; 

(2) Required approval to proceed with acquisition; 

(3) Original offers if in writing, or written documentation 
of verbal offers received; 

(4) Selection justification or reason for cancellation; 

(5) Worksheets/evaluations; 

(6) Distribution list, if used; 

(7) Written justification for waiver or emergency 
purchase; 

(8) Tabulation of offers received; 

(9) Copy of purchase order(s) or certification to agency 
authorizing placing of order; 

(10) Related correspondence; 

(11) Reason(s) for receiving only one offer in response to 
a solicitation; 



{121 

(14) 



Negotiated contracts 



Reasons for not accepting technical proposals; and 

Board decision record, 
(b) After award of contract all material in the contract record, 
except confidential information, shall be open to interested 
persons during normal office hours, may be hand copied, or 
copies shall be furnished in accordance with the Public Records 
Act. 

History Note: Authority G.S. 1438-472.65; 
Temporary Adoption Eff. Jannan- I, 2000. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Rule-making Agency: Division of Facility Senices 

Rule Citation: lONCAC 3R .0213, .0304 -.0305 .1613, .1615, 
.1713 -.1715, .1912 -.1914, .2113, .2713, .2715, .4203, .6250, 
.6252 -.6261, .6263 -.6293. 

Effective Date: Janiuiiy 1. 2000 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. I31E-I76(25): 13IE- 
177(1): 13IE-1 83(b) 

Reason for Proposed Action: To adopt rules to implement the 
2000 State Medical Facilities Plan. 

Comment Procedures: Questions or comments concerning the 
rules should be directed to Jackie Sheppard. Rule-making 
Coordinator, Division of Facility Sennces, 701 Barbour Drive, 
Raleigh, NC 27603. 

CHAPTER 3 - FACILITY SERVICES 



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SUBCHAPTER 3R - CERTIFICATE OF NEED 
REGULATIONS 

SECTION .0200 - EXEMPTIONS 

.0213 HEALTH MAINTENANCE ORGANIZATIONS 

(a) Applications for an exemption under G.S. 131E-180 shall 
be reviewed pursuant to the review schedule in 10 NCAC .IR 
.3020 Section .6200 of this Subchapter that is applicable for the 
new institutional health service for which the inpatient health 
service facility is requesting the exemption. 

(b) An applicant proposing to request an exemption under 
G.S. 1 .^ 1 E- 1 80 shall complete the certificate of need application 
form for the new institutional health service for which the 
exemption is requested and the supplemental form for a health 
maintenance organization exemption. 

(c) Applications for an exemption shall be filed and reviewed 
in accordance with 10 NCAC 3R .0305-.0309. 

(d) The Agency shall determine whether the applicant for the 
exemption is a qualified applicant and whether the application 
for exemption demonstrates that the proposed new institutional 
health service: 

(1) is required to meet the needs of what the Agency 
determines to be a reasonably projected membership 
of the HMO; and 

(2) is a cost-effective alternative to providing the service 
to the projected membership of the HMO. 

(e) If the Agency decision is to not grant the exemption, the 
applicant shall not develop or offer the new institutional health 
service without first obtaining a certificate of need. 

(f) If a decision is made that a certificate of need is required, 
the review for the certificate of need shall be conducted in the 
same review period as for the exemption. The Agency shall 
determine if the application conforms with the applicable review 
criteria of G.S. I31E-183(a) and (b). The Agency shall 
determine which plans, standards and criteria are applicable to 
the review of the proposal. If the proposal is not consistent with 
all applicable criteria in G.S. 131E-183(a), the Agency may 
approve or conditionally approve the proposal for a certificate of 
need if it conforms with the criteria set forth in G.S. 131E- 
180(e)(i)-(ii)andG.S. 131E-183(aKlO). 

Histfliy Note: Authority G.S. I31E-I77: 131E-180; 

Eff. Jamtai-y 1, 1982: 

Amended Ejf. November 1. 1996: Janucuy 1. 1990: November 

I. 1989: Februaiy I. 1986: 

Temimnirx Amendment Eff. January ]_^ 2000. 

SECTION .0300 - APPLICATION AND REVIEW 
PROCESS 

.0304 DETERMINATION OF REVIEW 

(a) After receipt of a letter of intent, the agency shall 
determine whether the proposed project requires a certificate of 
need. 

(b) When any of the equipment listed in G.S. 131E- 



1 76( 16)(f 1 ) or (p) is acquired in parts or piecemeal fashion, the 
acquisition shall be determined to require a certificate of need on 
the date that the components are assembled. 

(c) If the agency determines that the project requires aB 
certificate of need, the agency shall determine the appropriate 
review category or categories for the proposed project, the type 
or types of application forms to be submitted, the number of 
separate applications to be submitted, the applicable review 
period for each application, and the deadline date for submitting 
each application, as contained in this Subchapter. 

(d) Copies of the application forms may be obtained from the 
agency. 

(e) Proposals requiring review shall be reviewed according to 
the categories and schedule set forth in the duly adopted State 
Medical Facilities Plan in effect at the time the scheduled review 
period commences, as contained in Section t3QQ9 .6200 of this 
Subchapter. 

(f) Applications are competitive if they, in whole or in part, 
are for the same or similar services and the agency determines 
that the approval of one or more of the applications may result 
in the denial of another application reviewed in the same review 
period. 



History Note: Filed a.s a Temporary Amendment Eff. 

September I. 1993 for a period of 180 days or until the 

permanent rule becomes effective, whichever is sooner; 

Authority G.S. I31E-177: 

Eff. October 1. 1981: 

Amended Eff. November 1. 1996: Januaiy 4, 1994; January 1 

1990;Januaiyl,l987; 

Temporary Amendment Eff. Jaiuiaiy 1_^ 2000. 



• 



.0305 FILING APPLICATIONS 

(a) An application shall not be reviewed by the agency until 
it is filed in accordance with this Rule. 

(b) An original and a copy of the application shall be received 
by the agency no later than 5:00 p.m. on the last wo r k i ng day 
pr io r to 15 days befo r e the first day of 15"" day of the month 
preceding the scheduled review period. An application shall not 
be included in a scheduled review if it is not received by the 
agency by this deadline. Each applicant shall transmit, with the 
application, a fee to be determined according to the following 
formula: 

(1) With each application proposing the addition of a 
sixth bed to an existing or approved five bed 
intermediate care facility for the mentally retarded, 
the proponent shall transmit a fee in the amount of 
two thousand dollars ($2,000). 

(2) With each application, other than those referenced in 
Subparagraph {(b)(1) of this Rule, proposing no 
capital expenditure or a capital expenditure of up to, 
but not including, one million dollars ($1,000,000), 
the proponent shall transmit a fee in the amount of 
three thousand five hundred dollars ($3,500). 

(3) With each application, other than those referenced in^ 
Subparagraph ( b)( 1 ) of this Rule, proposing a capital 



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expenditure of one million dollars ($1,000,000) or 
greater, the proponent shall transmit a fee in the 
amount of three thousand five hundred dollars 
A ($3,500), plus an additional fee equal to .003 of the 

^ amount of the proposed capital expenditure in excess 

of one million dollars ($1,000,000). The additional 
fee shall be rounded to the nearest whole dollar. In no 
case shall the total fee exceed seventeen thousand five 
hundred dollars ($17,500). 

(c) After an application is filed, the agency shall determine 
whether it is complete for review. An application shall not he 
considered complete if: 

( 1 ) the requisite fee has not been received by the agency; 
or 

(2) a signed original and copy of the application have not 
been submitted to the agency on the appropriate 
application form. 

(d) If the agency determines the application is not complete 
for review, it shall mail notice of such determination to the 
applicant within five business days after the application is filed 
and shall specify what is necessary to complete the application. 
If the agency determines the application is complete, it shall mail 
notice of such determination to the applicant prior to the 
beginning of the applicable review period. 

(e) Information requested by the agency to complete the 
application must be received by the agency no later than 5;00 
p.m. on the last working day before the first day of the 
scheduled review period. The review of an application shall 
;ommence in the next applicable review period that commences 
after the application has been determined to be complete. 

(f) If an application is withdrawn by the applicant before the 
first day of the applicable review period, the application fee, if 
paid, shall be refunded to the applicant. 

History Note: Filed as a Temporary Amendment Ejf. August 

12, 1994. for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Filed as a Temporary Amendment Eff. August II, 1993. for a 

period of 180 days or until the permanent rule becomes 

effective, whichever is sooner; 

Filed as a Temporaiy Amendment Eff. July 15. 1983. for a 

Period of 1 18 Days, to Expire on November 10, 1983; 

Authority G.S. 131E-177; I31E-182; 1993 S.L c. 383; 

Eff. October 1. 1981; 

Amended Eff. December 1, 1994; Januaiy 4, 1994; November 

1, 1990; January 1. 1990; 

Temporary Amendment Eff. January I. 2000. 

SECTION .1600 - CRITERIA AND STANDARDS 

FOR CARDIAC CATHETERIZATION 

EQUIPMENT AND CARDIAC ANGIOPLASTY 

EQUIPMENT 

J613 DEFINITIONS 

The following definitions shall apply to all rules in this 
ISection: 



(1) "Approved" means the equipment was not in 
operation prior to the beginning of the review period 
and had been issued a certificate of need or had been 
acquired prior to March 18, 1993 in accordance with 
1993N.C. Sess. Lawsc. 7, s. 12. 

(2) "Capacity" of an item of cardiac catheterization 
equipment or cardiac angioplasty equipment means 
i270 1370 diagnostic-equivalent procedures per year. 
One therapeutic cardiac catheterization procedure is 
valued at -h67 1.75 diagnostic-equivalent procedures. 
One cardiac catheterization procedure performed on 
a patient age 14 or under is valued at two 
diagnostic-equivalent procedures. All other 
procedures are valued at one diagnostic-equivalent 
procedure. 

(3) "Cardiac angioplasty equipment" shall have the same 
meaning as defined in G.S. I31E-I76(2e). 

(4) "Cardiac catheterization equipment" shall have the 
same meaning as defined in G.S. 13IE-176(2f). 

(5) "Cardiac catheterization procedure", for the purpose 
of determining utilization in a certificate of need 
review, means a single episode of diagnostic or 
therapeutic catheterization which occurs during one 
visit to a cardiac catheterization room, whereby a 
flexible tube is inserted into the patients body and 
advanced into the heart chambers to perform a 
hemodynamic or angiographic examination or 
therapeutic intervention of the left or right heart 
chamber, or coronary arteries. A cardiac 
catheterization procedure does not include a simple 
right heart catheterization for monitoring purposes as 
might be done in an electrophysiology laboratory, 
pulmonary angiography procedure, cardiac pacing 
through a right electrode catheter, temporary 
pacemaker insertion, or procedures performed in 
dedicated angiography or electrophysiology rooms. 

(6) "Cardiac catheterization room" means a room or a 
mobile unit in which there is cardiac catheterization or 
cardiac angioplasty equipment for the performance of 
cardiac catheterization procedures. Dedicated 
angiography rooms and electrophysiology rooms are 
not cardiac catheterization rooms. 

(7) "Cardiac catheterization service area" means a 
geographical area defined by the applicant, which has 
boundaries that are not farther than 90 road miles 
from the facility, if the facility has a comprehensive 
cardiac services program; and not farther than 45 road 
miles from the facility if the facility performs only 
diagnostic cardiac catheterization procedures; except 
that the cardiac catheterization service area of an 
academic medical center teaching hospital designated 
in 10 NCAC 3R shall not be limited to 90 road miles. 

(8) "Cardiac catheterization services" means the 
provision of diagnostic cardiac catheterization 
procedures or therapeutic cardiac catheterization 
procedures performed utilizing cardiac catheterization 
equipment or cardiac angioplasty equipment in a 



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cardiac catheterization room. 
(9) "Comprehensive cardiac services program" means a 
cardiac services program which provides the full 
range of clinical services associated with the 
treatment of cardiovascular disease including 
community outreach, emergency treatment of 
cardiovascular illnesses, non-invasive diagnostic 
imaging modalities, diagnostic and therapeutic cardiac 
catheterization procedures, open heart surgery and 
cardiac rehabilitation services. Community outreach 
and cardiac rehabilitation services shall be provided 
by the applicant or through arrangements with other 
agencies and facilities located in the same city. All 
other components of a comprehensive cardiac 
services program shall be provided within a single 
facility. 

( 10) "Diagnostic cardiac catheterization procedure", forthe 
purpose of determining utilization in a certificate of 
need review, means a cardiac catheterization 
procedure performed for the purpose of detecting and 
identifying defects or diseases in the coronary arteries 
or veins of the heart, or abnormalities in the heart 
structure, but not the pulmonary artery. 

(11) "Electrophysiology procedure" means a diagnostic or 
therapeutic procedure performed to study the 
electrical conduction activity of the heart and 
characterization of atrial ventricular arrhythmias. 

(12) "Existing" means the equipment was in operation 
prior to the beginning of the review period. 

(13) "High-risk patient" means a person with reduced life 
expectancy because of left main or multi-vessel 
coronary artery disease, often with impaired left 
ventricular function and with other characteristics as 
referenced in the American College of 
Cardiology/American Heart Association Guidelines 
for Cardiac Catheterization and Cardiac 
Catheterization Laboratories (1991) report. 

(14) "Mobile equipment" means cardiac angioplasty 
equipment or cardiac catheterization equipment and 
transporting equipment which is moved to provide 
services at two or more host facilities. 

(15) "Percutaneous transluminal coronary angioplasty 
(PTCA)" is one type of therapeutic cardiac 
catheterization procedure used to treat coronary artery 
disease in which a balloon-tipped catheter is placed in 
the diseased artery and then inflated to compress the 
plaque blocking the artery. 

(16) "Primary cardiac catheterization service area" means 
a geographical area defined by the applicant, which 
has boundaries that are not farther than 45 road miles 
from the facility, if the facility has a comprehensive 
cardiac services program; and not farther than 23 road 
miles from the facility if the facility performs only 
diagnostic cardiac catheterization procedures; except 
that the primary cardiac catheterization service area of 
an academic medical center teaching hospital 



designated in 10 NCAC 3R shall not be limited to 45 
road miles. 
(17) "Therapeutic cardiac catheterization procedure", for^ 
the purpose of determining utilization in a certificated 
of need review, means a cardiac catheterization 
procedure performed for the purpose of treating or 
resolving certain anatomical or physiological 
conditions which have been determined to exist in the 
heart or coronary arteries or veins of the heart, but not 
the pulmonary artery. 

History Note: Filed as Temporary Amendment Ejf. September 

1, 1993 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authorit}- G.S. 131E-177(1): J31E-183; 

Eff.Jamiaiyl. 1987: 

Amended Eff. November 1. 1996: Februaiy 1, 1994; 

Temporal^ Amendment Eff. Jamiaiy 1. 1999: 

Temporary Amendment Eff. Januarx 1_^ 2000. 

.1615 REQUIRED PERFORMANCE STANDARDS 

(a) The An applicant shall demonstrate that the project is 
capable of meeting the following standards: 

(1) each proposed item of cardiac catheterization 
equipment or cardiac angioplasty equipment, 
including mobile equipment, shall be utilized at an 
annual rate of at least 60 percent of capacity, 
measured during the fourth quarter of the third year 
following completion of the project; 

(2) if the applicant proposes to perform therapeutic 
cardiac catheterization procedures, each of the 
applicant's therapeutic cardiac catheterization teams 
shall be performing at an annual rate of at least 100 
therapeutic cardiac catheterization procedures, during 
the third year of operation following completion of 
the project; 

(3) ifthe applicant proposes to pertbrm diagnostic cardiac 
catheterization procedures, each diagnostic cardiac 
catheterization team shall be performing at an annual 
rate of at least 200 diagnostic-equivalent cardiac 
catheterization procedures by the end of the third year 
following completion of the project; 

f3)(4} at least 50 percent of the projected cardiac 
catheterization procedures shall be performed on 
patients residing within the primary cardiac 
catheterization service area; area. 

(b) An applicant proposing to acquire mobile cardiac 
catheterization or mobile cardiac angioplasty equipment shall: 

f4)(l) demonstrate that each existing item of cardiac 
catheterization equipment and cardiac angioplasty 
equ ip me n t in each facility which has a prima r y 
cardiac catheterization service area that ove r laps 
equipment, excluding mobile equipment, located in 
the proposed primary cardiac catheterization service| 
area of each host facility shall have been operated at 
" a level of at least 80 percent of capacity during the 1 2 



i 



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month period retlected in the most recent licensure form on file 

with the Division of Facility Services; 

(51(2) demonstrate that the utilization of each existing or 
I approved item of cardiac catheterization equipment 

and cardiac angioplasty equ i pment, equipment, 
excluding mobile equipment, located in each facility 
which has a p r imary ca r d i ac cathet er izat i on se r vice 
area that ove r laps the proposed primary cardiac 
catheterization service area of each host facility shall 
not be expected to fall below 60 percent of capacity 
due to the acquisition of the proposed cardiac 
catheterization, cardiac angioplasty, or mobile 
equipment; 
(fr) if the applicant proposes to perform diagnostic ca r diac 
catheterization p rocedu r es, each diagnostic ca r diac 
cathete r ization team shall be performing at an annual 
rate of at least 200 diagnostic-equivalent ca r diac 
catheterization pr ocedures by the end of the third year 
following completio n of the p r oject; 

ffl(3) demonstrate that each item of existing mobile 
equipment operating in the proposed primary cardiac 
catheterization service area of each host facility shall 
have been performing at least an average of four 
diagnostic-equivalent cardiac catheterization 
procedures per day per site in the proposed cardiac 
catheterization service area in the 12 month period 
preceding the submittal of the application; 

t^(4) demonstrate that each item of existing or approved 
mobile equipment to be operating in the proposed 
primary cardiac catheterization service area of each 
host facility shall be performing at least an average of 
four diagnostic-equivalent cardiac catheterization 
procedures per day per site in the proposed cardiac 
catheterization service area in the applicant's third 
year of operation; and 
(5) provide documentation of all assumptions and data 
used in the development of the projections required in 
this Rule. 
(c) An applicant proposing to acquire cardiac catheterization 
or cardiac angioplasty equipment that is not mobile cardiac 
catheterization equipment shall: 



LU 



demonstrate that each of its existing items of cardiac 
catheterization and cardiac angioplasty equipment, 
except mobile equipment, located in the proposed 
cardiac catheterization service area operated at a level 
of at least 80% of capacity during the 12 mcMith 
period retlected in the most recent licensure renewal 
application form on fUe with the Division of Facility 
Services; 



(2] 



Oi 



demonstrate that each of |ts existing items of cardiac 
catheterization equipment or cardiac angiciplasty 
equipment, except mobile equipment, shall he utilized 
at an annual rate of at least 60 percent ot' capacity. 
measured during the fourth quarter of the third year 
following completion of the project; and 
provide documentation of aU assumptions and data 
used in the development of the projections required in 



this Rule. 
(tr)(d) If the applicant proposes to perform cardiac 
catheterization procedures on patients age 14 and under, the 
applicant shall demonstrate that it meets the following additional 
criteria: 

(1) the facility has the capability to perform diagnostic 
and therapeutic cardiac catheterization procedures and 
open heart surgery services on patients age 14 and 
under; 

(2) the proposed project shall be performing at an annual 
rate of at least 100 cardiac catheterization procedures 
on patients age 14 or under during the fourth quarter 
of the third year following initiation of the proposed 
cardiac catheterization procedures for patients age 14 
and under. 

td An applicant shall p r ovide documentation of all 

assumptions and data used in the development of the projections 
r equired in this Rule. 

Histoiy Note: Filed as a Teinporaiy Amendment Eff. 
September 1, 1993 for a period of 180 days or until the 
permanent rule becomes effective, whichever is sooner: 
Authority G.S. 131E-177(n: I31E-I83: 
Eff. Januaiy 1. 1987: 

Amended Eff. November 1. 1996: Februaiy 1. 1994: 
Temporaty Amendment Eff. January I. 1999: 
Temporary Amendment Eff. January I, 2000. 

SECTION .1700 - CRITERIA AND STANDARDS FOR 

OPEN-HEART SURGERY SERVICES AND 

HEART-LUNG BYPASS MACHINES 

.1713 DEFINITIONS 

The following definitions shall apply to all rules in this 
Section: 

( 1 ) "Capacity" of an open heart su r ge r y r oom a heart- 
lung bypass machine means 400 adult-equivalent 
open heart surgical procedures per year. One open 
heart surgical procedure on persons age 14 and under 
is valued at two adult open heart surgical procedures. 
For purposes of determining capacity, one open heart 
surgical procedure is defined to be one visit or trip by 
a patient to the open heart surgery an operating room 
for an open heart operation. 

(2) "Cardiac Surgical Intensive Care Unit" means a 
distinct intensive care unit as defined in 10 NCAC 3R 
.1213(2) and which is for exclusive use by post- 
surgical open heart patients. 

(3) "Heart-lung bypass machine" shall have the same 
meaning as defined in G.S. 131E-176(IOa). 

(4) "Open heart surgery service area" means a 
geographical area defined by the applicant, which has 
boundaries that are not farther than 90 road miles 
from the facility, except that the open heart surgery 
service area of an academic medical center leaching 
hospital designated in 10 NCAC 3R .3050 shall not 
be limited to 90 road miles. 



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(5) "Open heart surgery services" shall have the same 
meaning as defined in G.S. 131E- 176(1 8b). 

(6) "Open heart surgical procedures" means highly 
specialized surgical procedures which: 

(A) utilize a heart-lung bypass machine (the 
"pump" ) to perform extra-corporeal circulation 
and oxygenation during surgery; 

( B ) are designed to correct congenital and acquired 
cardiac and coronary disease; and 

(C) are identified by Medicare Diagnostic Related 
Group ("DRG") numbers 104, 105, 106, 107, 
and 108. 

fh "Open hea r t su r ge r y r oom" means an operating room 
pr imarily used to pe r fo r m open heart surgical 
procedu r es, as reported on the most cu rr ent hos p ital 
licensu r e ap p l i cation. 

fS) (7) "Open heart surgery program" means all of the open 
heart surgery rooms operated in one hospital. 

(91 (8j "Primary open heart surgery service area" means a 
geographical area defined by the applicant, which has 
boundaries that are not farther than 45 road miles 
from the facility, except that the primary open heart 
surgery service area of an academic medical center 
teaching hospital designated to 10 NCAC 3R .3050 
shall not be limited to 45 road miles. 

Histoiy Note: Filed as a Teinporaiy Amendment Eff. 

September I. 1993 for a period of 180 days or until the 

permanent rule becomes effective, whichever is sooner; 

Authority G.S. I3IE-I77(n: 131E-I83. 

Eff. January 1, 1987: 

Amended Eff. November 1. 1996: January 4. 1994: November 

1. 1989: 

Temporaiy Amendment Eff. January I. 1999: 

Temporary Amendment Eff. January L^ 2000. 

.1714 INFORMATION REQUIRED OF APPLICANT 

(a) An applicant that proposes to add an open heart surgery 
room or to acquire a heart-lung bypass machine shall use the 
acute care facility/medical equipment application form. 

(b) The applicant shall also provide the following additional 
information: 

(1 ) the — pr o j ected — n umbe r — of — open — heart — su r gical 
pr ocedu r es to be completed in each open heart 
su r ge r y r oom and the projected number of open heart 
surgical procedures to be performed on each heart- 
lung bypass machine owned by or operated in the 
facility for each of the first 12 calendar quarters 
following completion of the proposed project, 
including the methodology and assumptions used to 
make these projections; 

(2) the projected number of cardiac catheterization 
procedures to be completed in the facility for each of 
the first 1 2 calendar quarters following completion of 
the proposed project, including the methodology and 
assumptions used for these projections; 



(3) 



(4) 



(5) 



(6) 

(7) 



(8) 



(9) 



(10) 



the applicant's experience in treating cardiovascular 
patients at the facility during the past 12 months, 
including: ^ 

(A) the number of patients receiving stress tests; W 

(B) the number of patients receiving intravenous 
thrombolytic therapies; 

(C) the number of patients presenting in the 
Emergency Room or admitted to the hospital 
with suspected or diagnosed acute myocardial 
infarction; 

(D) the number of cardiac catheterization 
procedures performed, by type of procedure; 

(E) the number of patients referred to other 
facilities for cardiac catheterization or open 
heart surgical procedures, by type of 
procedure; 

(F) the number of patients referred to the 
applicant'sfacility for cardiac catheterization or 
open heart surgical procedures, by type of 
procedure; 

(G) the number of open heart surgery procedures 
performed by type of procedure during the 
twelve month period reflected in the most 
recent licensure form on file with the Division 
of Facility Services; 

the number of patients from the proposed open heart 

surgery service area who are projected to receive 

open heart surgical procedures by patient's county of 

residence in each of the first 12 quarters of operation] 

including the methodology and assumptions used to 

make the projections; 

the number of patients from the proposed primary 

open heart surgery service area who are projected to 

receive open heart surgical procedures by patient's 

county of residence in each of the first 12 quarters. 

including the methodology and assumptions used to 

make these projections; 

the projected patient referral sources; 

evidence of the applicant's capability to communicate 

efficiently with emergency transportation agencies 

and with all hospitals serving the proposed service 

area; 

the number and composition of open heart surgical 

teams available to the applicant; 

a brief description of the applicant's in-service 

training or continuing education programs for open 

heart surgical team members; and 

evidence of the applicant's capability to perform both 

cardiac catheterization and open heart surgical 

procedures 24 hours per day, 7 days per week. 



• 



History Note: Filed as Temporary Amendment Eff. September 
1. 1993 for a period of 180 days or until the permanent rule 
becomes effective, whichever is sooner: 
Authority G.S. 131E-177(1): 13IE-183: 
Eff. January 1. 1987: 



* 



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Amended Ejf. November I. 1996; January 4. 1994: November 
1, 1989: 

Temporaiy Amendment January I. 1999: 
k lemporan' Amendment Eff. January 1, 2000. 

.1715 REQUIRED PERFORMANCE STANDARDS 

The applicant shall demonstrate that the proposed project is 

capable of meeting the following standards; 

(-H each o p en heart surge r y room shall b e utilized at an 
annual rate of at least 50 percent of capacity, 
measured during the twelfth quarter followi n g 
completio n of the pr oject ; 

t2) 0} the applicant shall perform at least 4 diagnostic 
catheterizations per open heart surgical procedure 
during each quarter; 

(51 £2] a an applicant's existing and new or additional heart- 
lung bypass m a chi n e machines shall be utilized at an 
annual rate ot' 200 open heart surgical procedures per 
year per machine , measured during the twelfth quarter 
following completion of the project; project, with the 
exception that this standard may be waived for a 
second machine exclusively used for backup and 
owned by any hospital that is proposing to develop 
new open heart surgery services and acquired ks 
heart-lung bypass machines prior to March 18. 1993, 
but was unable to use such machines because it dkl 
not have a certificate of need authorizing it to provide 
open heart surgery services; 

t41 (3) at least 50 percent of the projected open heart surgical 
procedures shall be performed on patients residing 
within the primary open heart surgery service area; 

(5) (4} each existing open heart surgery program in each 
facility which has a primary open heart surgery 
service area that overlaps the proposed primary open 
heart surgery service area operated at a level of at 
least 80 percent of capacity during the 12 month 
period retlected in the most recent licensure form on 
file with the Division of Facility Services; 

((r)i5j the utilization of existing open heart surgery programs 
whose primary open heart surgery service area 
overlaps the proposed primary open heart surgery 
service area is not expected to fall below 50 percent 
of capacity due to the institution of the new or 
expanded open heart surgery program; 

fTi (6] the applicant's projected utilization and proposed 
staffing patterns are such that each open heart surgical 
team shall perform at an annual rate of at least 1 50 
open heart surgical procedures by the end of the third 
year following completion of the project; 

t81(7j the applicant shall document the assumptions and 
provide data supporting the methodology used to 
make these projections; and 

f9) (8] heart-lung bypass machines that have been acquired 
for non-surgical use. or for non-heart surgical 
procedure use. and that are dedicated for services that 
are not related to the open heart surgery program. 
services, shall not be utilized in the performance of 



open heart surgical procedures. 

Histoiy Note: Filed as a Temporary Amendment Eff. 
September I, 1993 for a period of 180 days or until the 
permanent rule becomes effective, whichever is sooner: 
Authority G.S. 131E-177('l}: 131E-I83(b): 
Ejf. January 1, 1987: 

Amended Eff. Januaiy 4. 1994: November I. 1989; 
Temporaiy Amendment Januaiy 1. 1999; 
Temporary Amendment Eff. Januarx 1, 2000. 

SECTION .1900 - CRITERIA AND STANDARDS FOR 
RADIATION THERAPY EQUIPMENT 

.1912 DEFINITIONS 

These definitions shall apply to all rules in this Section: 



(1) 



(2) 



(3) 



(4) 



(5) 



(6) 



(7) 



(8) 



(9) 



"Approved linear accelerator" means a linear 
accelerator which was not operational prior to the 
beginning of the review period but which had been 
issued a certificate of need or had been acquired prior 
to March 18, 1993 in accordance with 1993 N.C. 
Sess. Laws c. 7, s. 12. 

"Complex Radiation treatment" is equal to 2 1.25 
ESTVs and means; treatment on three or more sites 
on the body; use of special techniques such as 
tangential fields with wedges, rotational or arc 
techniques; or use of custom blocking. 
"Equivalent Simple Treatment Visit [ESTV]" means 
one basic unit of radiation therapy which normally 
requires up to 15 minutes for the uncomplicated set- 
up and treatment of a patient on a modern 
megavoltage teletherapy unit including the time 
necessary for portal filming. 
"Existing linear accelerator" means a linear 
accelerator in operation prior to the beginning of the 
review period. 

"Intermediate Radiation treatment" means treatment 
on two separate sites on the body, three or more fields 
to a single treatment site or use of multiple blocking 
and is equal to 2 MO ESTVs. 
"Linear accelerator" means MRT equipment which is 
used to deliver a beam of electrons or photons in the 
treatment of cancer patients. 

"Linear accelerator service area" means a 
geographical a r ea, defi n ed by the ap p l i cant, i n which 
a linear accele r ato r provides se r v i ces a n d in which no 
less than 120,000 perso n s reside, single or multi- 
county area as used in the development of the need 
determination in the applicable State Medical 
Facilities Plan. 



"Megavoltage unit" means MRT equipment which 
provides a form of teletherapy that involves the 
delivery of energy greater than, or equivalent to. one 
million volts by the emission of x-rays, gamma rays, 
electrons, or other radiation. 
"Megavoltage radiation therapy (MRT)" means the 



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use of ionizing radiation in excess of one million 
electron volts in the treatment of cancer. 

( 1 0) "MRT equipment" means a machine or energy source 
used to provide megavoltage radiation therapy 
including linear accelerators and other particle 
accelerators. 

(11) "Radiation therapy equipment" means medical 
equipment which is used to provide radiation therapy 
services. 

(12) "Radiation therapy services" means those services 
which involve the delivery of precisely controlled and 
monitored doses of radiation to a well defined volume 
of tumor bearing tissue within a patient. Radiation 
may be delivered to the tumor region by the use of 
radioactive implants or by beams of ionizing radiation 
or it may be delivered to the tumor region 
systemically. 

(13) "Radiation therapy service area" means the 
geographic area in which radiation therapy services 
a r e p ro p osed to be provided by the applicant, a single 
or multi-county area as used in the development of 
the need determination in the applicable State 
Medical Facilities Plan. 

(14) "Simple Radiation treatment" means treatment on a 
single site on the body, single treatment field or 
parallel opposed fields with no more than simple 
blocks and is equal to 1 ESTV. 

(15) "Simulator" means a machine that precisely 
reproduces the geometric relationships of the MRT 
equipment to the patient. 

(16) "Special technique" means radiation therapy 
treatments that may require increased time for each 
patient visit including: 

(a) total body irradiation (photons or electrons) 
which equals 4.0 ESTVs; 

(b) hemi-body irradiation which equals 2.0 
ESTVs; 

(c) intraoperative radiation therapy which equals 
10.0 ESTVs; 

(d) particle radiation therapy which equals 2.0 
ESTVs; 

(e) dynamic conformational radiation therapy with 
moving gantry, collimators or couch which 
equals 1.5 ESTVs; 

(f) limb salvage irradiation at lengthened SSD 
which equals 2i) JJ) ESTV; 

(g) additional field check radiographs which 
equals 705^ ESTV; and 

(h) stereotactic radiosurgery treatment 
management which equals br^ 31) ESTVs. 

History Note: Filed as Teniporaiy Adoption Ejf. September 1. 
1993 for a period of 180 days or until the permanent rule 
becomes effective, whichever is sooner: 
Authorit}- G.S. 131E-177(n: 131E-183; 
Eff. Janiiaiy 4, 1994: 



Amended Eff. November 1, 1996: 
Teniporaiy Amendment Januaiy 1, 1999: 
Temporary Amendment Eff. Janiiar\ 1_^ 2000. 



t 



.1913 INFORMATION REQUIRED OF APPLICANT 

(a) An applicant proposing to acquire radiation therapy 
equipment shall use the Acute Care Facility/Medical Equipment 
application form. 

(b) An applicant proposing to acquire radiation therapy 
equipment shall also provide the following additional 
information: 

Hi a desc r iption of the boundaries of the proposed 

r adiation therapy service ai ' ea or the p r o p osed linea r 

accelerator service area if the a p plicant p r oposes to 

acquire a linea r accele r ato r; 
(2) a list of the existing r adiation therapy equipment in 

the p r oposed r adiation therapy service area or linear 

accelerator serv i ce area; 
(fH UJ a list of all the radiation therapy equipment to be 

acquired and documentation of the capabilities and 

capacities of each item of equipment; 
(41 (2} documentation of the purchase price and fair market 

value of each piece of radiation therapy equipment, 

each simulator, and any other related equipment 

proposed to be acquired; 

(5) £3j the projected number of patient treatments by county 

and by simple, intermediate and complex treatments 
to be performed on each piece of radiation therapy 
equipment for each of the first eight calendar quartersA I 
following the completion of the proposed project and^ 
documentation of all assumptions by which utilization 
is projected; 

(6) (4j documentation that the proposed radiation therapy 

equipment shall be operational at least seven hours 
per day, five days a week; 

fF) (5) documentation that no more than one simulator is 
available for every two linear accelerators in the 
applicant's facility, except that an applicant that has 
only one linear accelerator may have one simulator; 

(^ (6] documentation that the services shall be offered in a 
physical environment that conforms to the 
requirements of federal, state, and local regulatory 
bodies; and 

(^ [7] the projected number of patients that will be treated 
for cure and the number of patients that will be 
treated for palliation on each linear accelerator on an 
annual basis. 



Histoiy Note: Filed as Teniporaiy Adoption Ejf. September I. 

1993 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authority G.S. 131E-177(I): I31E-183; 

Eff. Januaiy 4. 1994: 

Amended Eff. November 1, 1996: 

Teniporaiy Amendment Eff. Januaiy 1, 1999: 

Teniporaiy Amendment Eff. Januan' 1_^ 2000. 



4 



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.1914 REQUIRED PERFORMANCE STANDARDS 

(a) An applicant proposing to acquire a linear accelerator 
kshall demonstrate that each of the following standards shall be 

met: 

( 1 ) each an applicant's existing linear accelerator i n the 
proposed service area served at least 250 patients or 
provided 6,500 ESTV treatments in the twelve 
months prior to the date the application was 
submitted; 

(2) each proposed new linear accelerator shall be utilized 
at an annual rate of 250 patients or 6,500 ESTV 
treatments during the third year of operation of the 
new equipment; and 

(3) each an applicant's existing and approved linear 
accelerator shall be projected to be utilized at an 
annual rate of 250 patients or 6,500 ESTV treatments 
during the third year of operation of the new 
equipment. 

(b) A linear accelerator shall not be held to the standards in 
Paragraph (a) of this Rule if the applicant provides 
documentation that the linear accelerator has been or shall be 
used exclusively for clinical research and teaching. 

(c) An applicant proposing to acquire radiation therapy 
equipment other than a linear accelerator shall provide the 
following information: 

( 1 ) the number of patients that are projected to receive 
treatment from the proposed radiation therapy 
equipment, classified by type of equipment, 
diagnosis, treatment procedure, and county of 
residence; and 

(2) the maximum number and type of procedures that the 
proposed equipment is capable of performing. 

(d) The applicant shall document all assumptions and provide 
data supporting the methodology used to determine projected 
utilization as required in this Rule. 

Histoiy Note: Filed as Temporaiy Adoption Ejf. September 1, 
1993 for a period of 180 days or until the permanent rule 
becomes effective, whichever is sooner; 
Authority G.S. 131E-I77(]); 
Eff. January 4. 1994: 
\niended Eff. November 1, 1996: 
Temporaiy Amendment Eff. January 1. 1999: 
Temporarx Amendnwnt Eff. January- L 2000. 



SECTION .2100 - CRITERIA AND STANDARDS FOR 
AMBULATORY SURGICAL SERVICES 

2113 DEFINITIONS 

The following definitions shall apply to all rules in this 
section: 

( 1 ) "Ambulatory surgical case" means an individual who 
receives one or more ambulatory surgical procedures 
in an ambulatory surgical operating room during a 
single operative encounter. 



(2) "Ambulatory surgical service area" means a single or 
multi-county area as used in the development of +0 
NCAC 3R .3030 the ambulatorv surgical facility need 
determination in tlie applicable State Medical 
Facilities Plan . 

(3) "Ambulatory surgical services" means those surgical 
services provided to patients as part of an ambulatory 
surgical program within a licensed ambulatory 
surgical facility or a general acute care hospital 
licensed under G.S. Chapter 1 3 1 E, Article 5, Part A. 

(4) "Ambulatory surgical facility" means a facility as 
defined in G.S. I31E-I76( la). 

(5) "Ambulatory surgical operating room" means a 
dedicated or shared operating room in a licensed 
ambulatory surgical facility, or a general acute care 
hospital licensed under G.S. 13 IE, Article 5, Part A, 
that is fully equipped to perform surgical procedures 
and is constructed to meet the specifications and 
standards, including fire and life safety code 
requirements, appropriate to the type of facility as 
utilized by the Construction Section of the Division of 
Facility Services. Ambulatory surgical operating 
rooms exclude operating rooms dedicated for the 
performance of inpatient surgical procedures, cast 
rooms, procedures rooms that do not meet operating 
room specifications, suture rooms, YAG laser rooms, 
and cystoscopy and endoscopy procedure rooms that 
do not meet the specifications of an operating room. 

(6) "Ambulatory surgical program" means a program as 
defined in G.S. 13IE-176(lb). 

(7) "Ambulatory surgical procedure" means a surgical 
procedure performed in a surgical operating room 
which requires local, regional or general anesthesia 
and a period of post-operative observation of less than 
24 hours. Ambulatory surgical procedures exclude 
those procedures which are generally performed more 
than 50 percent of the time in a physician's office. 

(8) "Existing ambulatory surgical operating rooms" 
means those ambulatory surgical operating rooms in 
ambulatory surgical facilities and hospitals which 
were reported in the License Application for 
Ambulatory Surgical Facilities and Programs and in 
Part III of Hospital Licensure Renewal Application 
Form submitted to the Licensure Section of the 
Division of Facility Services and which were licensed 
and certified prior to the beginning of the review 
period. 

(9) "Approved ambulatory surgical operating rooms" 
means those ambulatory surgical operating rooms that 
were approved for a certificate of need by the 
Certificate of Need Section prior to the date on which 
the applicant's proposed project was submitted to the 
Agency but that have not been licensed and certified. 
The term also means those operating rooms which the 
Certificate of Need Section determined were not 
subject to certificate of need review and which were 
under construction prior to the date the applicant's 



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TEMPORAR Y RULES 



proposal was submitted to the Agency. 

(10) "Dedicated ambulatory surgical operating room" 
means an ambulatory surgical operating room used 
solely for the performance of ambulatory surgical 
procedures. 

(11) "Multispecialty ambulatory surgical program" means 
a program as defined in G.S. 131E-176( 15a). 

(12) "Shared surgical operating room" means an 
ambulatory surgical operating room that is used for 
the performance of both ambulatory and inpatient 
surgical procedures. 

(13) "Specialty area" means an area of medical practice in 
which there is an approved medical specialty 
certificate issued by a member board of the American 
Board of Medical Specialties and includes, but is not 
limited to the following: gynecology, 
otolaryngology, plastic surgery, general surgery, 
ophthalmology, urology, orthopedics, and oral 
surgery. 

(14) "Specialty ambulatory surgical program" means a 
program as defined in G.S. 131E-176(24c). 

(15) "Practical utilization" is 4.3 surgical cases per day for 
a dedicated ambulatory surgical operating room and 
3.5 surgical cases per day for a shared surgical 
operating room. 

History Note: Filed as Temporary Adoption Eff. September 1, 

1993 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authority G.S. 131 £-177(1): 131E-183; 

Eff. November 1, 1990; 

Amended Eff. January 4, 1994: March 1. 1993; 

Temporaty Amendment Eff. January I, 1999; 

Temporary Amendment Eff. Januarx 1_^ 2000. 

SECTION .2700 - CRITERIA AND STANDARDS FOR 
MAGNETIC RESONANCE IMAGING SCANNER 



.2713 

The I 
Section: 
(1) 



(2) 
(3) 



DEFINITIONS 

bllowing definitions shall apply to all rules in this 

"Approved MRI scanner" means an MRI scanner 
which was not operational prior to the beginning of 
the review period but which had been issued a 
certificate of need or had been acquired prior to 
March 18, 1993 in accordance with 1993 N.C. Sess. 
Laws c. 7, s. 12. 

"Existing MRI scanner" means an MRI scanner in 
operation prior to the beginning of the review period. 
"Magnetic Resonance Imaging" (MRI) means a 
non-invasive diagnostic modality in which electronic 
equipment is used to create tomographic images of 
body structure. The MRI scanner exposes the target 
area to nonionizing magnetic energy and radio 
frequency fields, focusing on the nuclei of atoms such 
as hydrogen in the body tissue. Response of selected 



nuclei to this stimulus is translated into images for 
evaluation by the physician. 

(4) "Magnetic resonance imaging scanner" (MRI^ 
Scanner) is defined in G.S. 131E-176(14e). ■ 

(5) "Mobile MRI scanner" means an MRI scanner and 
transporting equipment which is moved to provide 
services at two or more host facilities. 

(6) "MRI procedure" means a single discrete MRI study 
of one patient. 

(7) "MRI service area" means the geog r aphic area 
defined by the applicant the Magnetic Resonance 
Imaging Planning Areas, as defined in 10 NCAC 3R 
.6253(f). 

(8) "MRI study" means one or more scans relative to a 
single diagnosis or symptom. 

History Note: Filed as Temporary Adoption Eff. September 1 , 

1993 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authorin-G.S. 131E-177{1): 131E-183; 

Eff. February 1, 1994; 

Temporary Amendment Eff. January 1. 1999; 

Temporary Amendment Eff. January [^ 2000. 

.2715 REQUIRED PERFORMANCE STANDARDS 

(a) An applicant proposing to acquire a mobile magnetic 
resonance imaging (MRI) scanner, including a mobile MRI 
scanner, shall: 



(1) 



(2) 



(3) 



(4) 



(5) 



demonstrate that all existing MRI scanners, exceptA 
mobile MRI scanners, except those moved to provide 
services at more than one site, operating in the 
p r oposed MRI service area area(s) in which the 
proposed MRI scanner will be located performed at 
least 2,032 2900 MRI procedures in the last year; 
project annual utilization in the third year of operation 
of at least 2,032 2900 MRI procedures per year, for 
each p r oposed MRI scanner or mobile MRI scanner 
to be operated by the applicant in the pr o p osed MRI 
service area area(s) in which the proposed MRI 
scanner will be located; 

demonstrate that all of the existing MRI scanners 
scanners, except mobile, operating in the proposed 
MRI service area area(s) in which the proposed MRI 
scanner will be located, shall be performing at least 
2,032 2,900 MRI procedures per year in the 
applicant's third year of operation; 
demonstrate that all of the approved MRI sca n ners 
scanners, except mobile, in the p r o p osed MRI service 
area area(s) in which the proposed MRI scanner will 
be located, shall be performing at least 2,032 2.900 
MRI procedures per year in the applicant's third year 
of operation; 

demonstrate that all existing mobile MRI scanners 
operating in the pr o p osed MRI service area area(s) in 
which the proposed MRI scanner will be located, 
performed at least an average of eight procedures per 



I 



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day per site in the proposed MRI service area area(s) 
in the last year and shall be performing at least an 
average of eight procedures per day per site in the 
^ pr oposed MRI service area area(s) in the applicant's 

' third year of operation; 

(6) demonstrate that all approved mobile MRI scanners 
to be operating in the pr oposed MRI service area 
area(s) in which the proposed MRI scanner will be 
located, shall be performing at least an average of 
eight procedures per day per site in the p r oposed MRI 
service area area(s) in the applicant's third year of 
operation; and 

(7) document the assumptions and provide data 
supporting the methodology used for each projection 
required in this Rule. 

(b) An applicant proposing to acquire a magnetic resonance 
imaging (MRI) scanner that is not a mobile MRI scanner shall: 

( 1 ) demonstrate that its existing MRI scanners, except 
mobile MRI scanners, operating in the proposed MRI 
service area in which the proposed MRI scanner will 
be located performed at least 2900 MRI procedures in 
the last year, with the exception that applicants 
proposing to acquire an MRI scanner to replace MRI 
services provided pursuant to a service agreement 
with a mobile provider shall demonstrate that 2080 
MRI procedures were performed at the applicant's 
facility in the last year; 

(2) project annual utilization in the third year of operation 
of at least 2900 MRI procedures per year, for each 
MRI scanner or mobile MRI scanner to be operated 
by the applicant in the MRI ser\ice area(s) in which 
the proposed equipment will be located; and 

(3) document the assumptions and provide data 
supporting the methodology used for each projection 
required in this Rule. 



History Note: Filed as Temporcuy Adoption EJf. September 1, 

1993 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 131 £-177(1): 131E-183(b): 

Eff. February 4. 1994: 

Temporary Amendment Eff. Jannaiy I. 1999: 

Temporary Amendment Eff. January 1. 2000. 

SECTION .4200 - CRITERIA AND STANDARDS FOR 

HOSPICES, HOSPICE INPATIENT FACILITIES, AND 

HOSPICE RESIDENTIAL CARE FACILITIES 

.4203 REQUIRED PERFORMANCE STANDARDS 

(a) An applicant proposing to develop hospice inpatient 
acility beds or hospice residential care facility beds shall 
Icmonstrate that; 



( 1 ) the average occupancy rate of the licensed beds in the 
facility is projected to be at least 50% for the last six 
months of the first operating year following 
completion of the project; 

(2) the average occupancy rate for the licensed beds in 
the facility is projected to be at least 65% for the 
second operating year following completion of the 
project; and 

(3) if the application is submitted to address the need for 
a hospice residential care facility or hospice inpatient 
facility for a contiguous grouping of counties, each 
existing facility which is located in the hospice 
service area and which has licensed beds of the type 
proposed by the applicant attained an occupancy rate 
of at least 65'7c for the 12 month period reported on 
that facility's most recent Licensure Renewal 
Application Form. 

(b) An applicant proposing to add beds to an existing hospice 
inpatient facility or hospice residential care facility shall 
document that the average occupancy of the licensed hospice 
inpatient and hospice residential care facility beds in its existing 
facility was at least 65% for the nine months immediately 
preceding the submittal of the proposal. 

(c) An applicant proposing to develop a hospice shall 
demonstrate that no less than 80% of the total number of days of 
hospice care furnished to Medicaid and Medicare patients will 
be provided in the patient's residence in accordance with 42 CFR 
418.302(f)(2), 

History Note: Authority G.S. 131E-I77(1): 
Eff. My 1. 1994: 

Temporary Amendment Eff. Jamiaty 1, 1999: 
Temporal^ Amendment Eff. January 1. 2000. 

SECTION .6200 - PLANNING POLICIES AND NEED 
DETERMINATIONS FOR 2000 

.6250 APPLICABILITY OF RULES RELATED 

TO THE 2000 STATE MEDICAL FACILITIES 
PLAN 

Rules .6250 through .6254 and .6256 through .6293 of this 
Section apply to certificate of need applications for which the 
scheduled review period begins during calendar year 2()()0. In 
addition. Rule .6255 of this Section shall be used to implement 
procedures described within it during calendar year 2000. 

History Note: Authority G.S. 1 31 E-176(25): 131E-177( 1 ): 

131E-183(b): 

Temporary Adoption Eff. Januaiy J_^ 2000. 

.6251 (RESERVED FOR FUTURE CODIFICATION) 



.6252 CERTIFICATE OF NEED REVIEW SCHEDULE 

The Department of Health and Human Services (DHHS) has established the following review schedules for certificate of need 
applications. 



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TEMPORARY RULES 



(I ) Acute Care Beds (in accordance with the need determination in 10 NCAC 3R .6256) 



Hospital Service System 



CON Beginning 
Review Date 



I 



Onslow County 



March L 2000 



(2) Fixed Cardiac Catheterization Equipment (in accordance with the need determination in 10 NCAC 3R .6261 ) 



Hospital Service System 


CON Beginning 
Review Date 


Cabarrus County 


October 1 , 2000 



(?>) Radiation Oncology Treatment Centers (in accordance with the need determination in 10 NCAC 3R .6269) 



Radiation Oncology Treatment 


CON Beginning 


Center Service Area 


Review Date 


13 (Durham, Caswell, Granville, Person, Vance, 


October 1 , 2000 


Warren) 





(4) Magnetic Resonance Imaging Scanners (in accordance with the need determination in 10 NCAC 3R .6270) 



Magnetic Resonance Imaging 




CON Beginning 
Review Date 


Planning Area 


3 (Buncombe, Madison. McDowell. Mitchell, Yancey) 




April 1,2000 


9 (Cabarrus. Montgomery, Rowan, Stanly) 




October 1,2000 


12 (Alamance) 




April 1,2000 


13 (Caswell, Durham. Granville. Person. Vance, Warren) 




April 1 , 2000 


15 (Davidson, Guilford, Randolph, Rockingham) 


Pender 1 


October 1 , 2000 
April 1,2000 


21 (Bladen, Brunswick. Columbus. Duplin, New Hanover. 



(5) Magnetic Resonance Imaging Scanners (in accordance with the need determination in 10 NCAC 3R .6271 ) 



Magnetic Resonance Imaging 


CON Beginning 
Review Date 


Planning Area 


13 (Caswell. Durham. Granville, Person. Vance. Warren) 


October 1 . 2000 



(6) Nursing Care Beds (in accordance with the need determinations in 10 NCAC 3R .6272 and .6273) 





CON Beginning 


County 


Review Date 


Caswell 


October 1 , 2000 


Rockingham 


April 1.2000 


Perquimans 


September 1 , 2000 


Statewide Demonstration Project 


June 1 . 2000 



(7) Home Health Agencies or Offices (in accordance with the need determination in 10 NCAC 3R .6274) 



CON Beginning 



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County Review Date 


Pamlico April 1,2000 


' [8] 


Dialysis Stations Adjusted Need Determination (in accordance with the need determination in 10 NCAC 3R .6276) 






CON Beeinnirm 
Countv Review Date 


McDowell March 1 , 2000 



(9) Chemical Dependency (SubstanceAbuse) Beds - Adult Detox-Only Beds (in accordance with the need determination in 
10 NCAC 3R 6280) 















CON Beginning 


Mental Health Planning Area 










Review Date 


1 


(Cherokee, Clay, Graham, Haywood, Jackson, Macon, 


Swain) 






June 1 , 2000 


4 


(Henderson, Transylvania) 










June 1 , 2000 


5 


(Alexander, Burke, Caldwell, McDowell) 










June 1 , 2000 


6 


(Rutherford, Polk) 










June 1,2000 


7 


(Cleveland) 










June 1 , 2000 


11 


(Rowan, Stanly, Cabarrus, Union) 










June 1 , 2000 


12 


(Surry, Yadkin. Iredell) 










June 1,2000 


14 


(Rockingham) 










June 1,2000 


16 


(Alamance, Caswell) 










June 1 , 2000 


f " 


(Orange, Person, Chatham) 










June 1 , 2000 


19 


(Vance, Granville, Franklin, Wairen) 










June 1 , 2000 


20 


(Davidson) 










March 1 , 2000 


22 


(Bladen, Columbus, Robeson, Scotland) 










March 1 , 2000 


25 


(Johnston) 










March 1 , 2000 


26 


(Wake) 










March 1,2000 


30 


(Wayne) 










June 1.2000 


31 


(Wilson, Greene) 










June 1 


2000 


32 


(Edgecombe, Nash) 










June 1 


2000 


33 


(Halifax) 










June 1 


2000 


34 


(Carteret, Craven, Jones, Pamlico) 










June 1 


2000 


35 


(Lenoir) 










June 1 


2000 


37 


(Bertie, Gates, Hertford, Northampton) 










June 1 


2000 


38 


(Beaufort, Hyde, Martin, Tyrrell, Washington) 










June 1 


2000 


39 


(Camden, Chowan, Currituck, Dare, Pasquotank 


, Perquimans) 






June 1 


2000 


40 


(Duplin. Sampson) 










June 1 


2000 


(10) There are ten catesiories of facilities and services for certificate of need review 


Thel 
AC 3 


3HHS shall determine the appropriate 


review cateaory or catesiories for all applications submitted pursuant to 1 NC 


R .0304. For 


proposals which include 
is not practical to submit 
ewed. The review of an 


mort 


than one category, the DHHS may require the applic 


ant to submit separat 


eappl 


cations. If it 


separate applications, the DHHS shall determine in whic 


h cate 


uory the 


application 


shall be rev 


appli 
deter 


cation for a certificate of need shall commence in th 


e next 


applicable review schedule after the application has been 


mined to be complete. The ten categories of facilities and 


services are: 






iaj 


Category A. Proposals submitted by acute care hospitals 


, except 


those 


proposals included in Categories B throuuh 


H and Category J, including but not limited to the t 


ollowini: types 


of projects: 


renovation, construction, equipment. 




and acute care services. 















NORTH CAROLINA REGISTER 



January 14, 2000 



1294 



-"""- — TTrinrmtniiTTmiTinniTfflHiHiy 



TEMPORARY RULES 



(b) Category B. Proposals for nursing care beds; new continuing care retirement communities applying for exemption 
under 10 NCAC 3R .6286; and relocations of nursing care beds under 10 NCAC 3R .6388. 

(c) Category C. Proposals for new psychiatric facilities: psychiatric beds in existing health care facilities; new ^ 
intermediate care facilities for the mentally retarded (ICF/MR) and ICF/MR beds in existing health care facilitiesw 
new substance abuse and chemical dependency treatment facilities; substance abuse and chemical dependency 
treatment beds in existing health care facilities, with the exception of proposals in Category G. 

(d) Category D. Proposals for new dialysis stations in response to the "county need" or "facility need" methodologies; 
and relocations of existing dialysis stations to another county, with the exception of proposals [n Category G. 

(e) Category E. Proposals for new or expanded inpatient rehabilitation facilities and inpatient rehabilitation beds in 
other health care facilities; and new or expanded ambulatory surgical facilities except those proposals included in 
Category H. 

(f) Category F. Proposals for new home health agencies or offices, new hospices, new hospice inpatient facility beds. 
and new hospice residential care facility beds. 

(g) Category G. Proposals for conversion of hospital beds to nursing care under 10 NCAC 3R .6285; new dialysis 
stations as the result of an "adjusted need determination" in McDowell County; and Adult Detox-Only beds in the 
South Central Mental Health Region. 

(h) Category H. Proposals for bone marrow transplantation services, bum intensiye care services, neonatal intensive 
care services, open heart surgery services, solid organ transplantation services, air ambulance equipment, cardiac 
catheterization equipment, cardiac angioplasty equipment, heart-lung bypass machines, gamma knives, lithotriptors. 
magnetic resonance imaging scanners, positron emissiiin tomography scanners, major medical equipment as del'med 
in G.S. 13 IE- 176(141"). diagnostic centers as defined jn G.S. 131E-176(7a). and oncology treatment centers as 
defined in G.S. 131E-I76( 18a). 
(U Category I. Proposals involving cost overruns; expansions of existing continuing care retirement communities 
which are licensed by the Department of Insurance at the date the application is filed and are applying under 10 
NCAC 3R .6286 for exemption from need determinations in 1 NCAC 3R .6272; relocations within the same county 
of existing health service facilities, beds or dialysis stations which do not involve an increase in the number of health 
service facility beds or stations; reallocation of beds or services; Category A proposals submitted by Academic 
Medical Center Teaching Hospitals designated prior to January 1 . 1 990; proposals submitted pursuant to 1 NCAC 
3R .6282(c) by Academic Medical Center Teaching Hospitals designated prior to January 1. 1990; and any otherM 
proposal not included in Categories A through H and Category J. 
(j} Category J. Proposals for demonstration projects; and conversions of acute care hospitals to long-term acute care 
hospitals. 
(11) A service, facility, or equipment for which a need determination is identified in Items ( 1 ) through (9) of this Rule shall have 
only one scheduled review date and one corresponding application filing deadline in the calendar year, even though the 
following review schedule shows multiple review dates for the broad category. Applications for certificates of need for 
new institutional health services not specified in Items (1 ) through (9) of this Rule shall be reviewed pursuant to the 
following review schedule, with the exception that no reviews are scheduled if the need determination is zero. Need 
determinations for additional dialysis stations pursuant to the "county need" or "facility need" methodologies shall be 
reviewed in accordance with 1 NCAC 3R .6275. 



CON Beginning 


Review Categories 


Review Categories 


Review Date 


for HSA 1. 11, 


Ill 


for HSA IV. V. VI 


January 1 . 2000 


-- 




-- 


February 1 . 2000 


;:; 




zz 


March 1 . 2000 


A,E,ai 




A,B,E,ai 


April 1 . 2000 


B^Liil 




Liil 


May 1 . 2000 


- 




;; 


June 1.2000 


A,c,aLJ 




C,D,LJ 


July 1.2000 


~ 




A,I 


August 1 . 2000 


EI 




-_z 


September 1 . 2000 


~ 




B,E,1 


October 1.2000 


A,B,F,IiI 




LiLl 


November 1 . 2000 


- 




- 



1295 NORTH CAROLINA REGISTER January 14, 2000 14:14 



TEMPORARY RULES 



December L 2000 



C, DJ 



A, CD, I 



( 12) In order to give the DHHS sufficient time to provide public notice of review and public notice of public hearings as 
required by G.S. 131E-185, the deadline for filing certificate of need applications is 5:00 p.m. on the 15"' day of the month 
preceding the "CON Beginning Review Date." In instances when the 15"' day of the month falls on a weekend or holiday, 
the filing deadline is 5:00 p.m. on the next business day. The filing deadline is absolute and applications received after the 
deadline shall not be reviewed in that review period. 

Histoiy Note: Authority G.S. 131E-176{25): 13IE-I77{1): J31E-183(b): 
Temporarx Adoption Eff. Januarx [^ 2000. 

.6253 MULTI-COUNTY GROUPINGS 

( aj Health Service Areas. The Department of Health and Human Services (DHHS) has assigned the counties of the state to the 
following health service areas for the purpose of scheduling applications for certificates of need: 







HEALTH SERVICE AREAS (HSA) 




I 


n 


s 


lY 


V 


VI 


County 


County 


County 


County 


County 


County 


Alexander 


Alamance 


Cabarrus 


Chatham 


Anson 


Beaufort 


Alleghany 


Caswell 


Gaston 


Durham 


Bladen 


Bertie 


Ashe 


Davidson 


Iredell 


Franklin 


Brunswick 


Camden 


Avery 


Davie 


Lincoln 


Granville 


Columbus 


Carteret 


Buncombe 


Forsyth 


Mecklenburg 


Johnston 


Cumberland 


Chowan 


Burke 


Guilford 


Rowan 


Lee 


Harnett 


Craven 


Caldwell 


Randolph 


Stanly 


Orange 


Hoke 


Currituck 


Catawba 


Rockingham 


Union 


Person 


Montgomery 


Dare 


Cherokee 


Stokes 




Vance 


Moore 


Duplin 


Clay 


Surry 




Wake 


New Hanover 


Edgecombe 


Cleveland 


Yadkin 




Warren 


Pender 


Gates 


Graham 








Richmond 


Greene 


Haywood 








Robeson 


Halifax 


Henderson 








Sampson 


Hertford 


Jackson 








Scotland 


Hyde 


McDowell 










Jones 


Macon 










Lenoir 


Madison 










Martin 


Mitchell 










Nash 


Polk 










Northampton 


Rutherford 










Onslow 


Swain 










Pamlico 


Transylvania 










Pasquotank 


Watauga 










Perquimans 


Wilkes 










Pitt 


Yancey 

1 










Tyrrell 
Washington 
Wayne 
Wilson 



(bj Mental Health Planning Areas. The DHHS has assigned the counties of the state to the following Mental Health Planning 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1296 



mmmaaaai 



TEMPORARY RULES 



Areas for purposes of the State Medical Facilities Plan: 





MENTAL HEALTH PLANNING AREAS . 


> 


Area Number 


Constituent Counties 


V 


i 


Cherokee, Clay, Graham, Haywood, Jackson, Macon, Swain 


2 


Buncombe, Madison, Mitchell, Yancey 




3 


Alleghany, Ashe, Ayery, Watauaa, Wilkes 




4 


Henderson, Transylvania 




5 


Alexander, Burke, Caldwell, McDowell 




6 


Rutherford, Polk 




7 


Cleyeland 




8 


Gaston, Lincoln 




9 


Catawba 




10 


Mecklenburg 




ii 


Cabarrus, Rowan, Stanly, Union 




12 


Surry, Yadkin, Iredell 




B 


Forsyth, Stokes, Dayie 




\A 


Rockingham 




15 


Guilford 




16 


Alamance, Caswell 




II 


Orange, Person, Chatham 




18 


Durham 




19 


Vance, Granville, Franklin, Warren 




20 


Davidson A 


2i 


Anson, Hoke, Montgomery, Moore, Richmond 


w 


22 


Bladen, Columbus, Robeson, Scotland 




23 


Cumberland 




24 


Lee, Harnett 




25 


Johnston 




26 


Wake 




27 


Randolph 




28 


Brunswick, New Hanover. Pender 




29 


Onslow 




30 


Wayne 




3i 


Wilson, Greene 




32 


Edgecombe, Nash 




33 


Halifax 




34 


Carteret. Craven. Jones, Pamlico 




35 


Lenoir 




36 


Pitt 




37 


Bertie, Gates. Hertford. Northampton 




38 


Beaufort, Hyde, Martin, Tyrrell, Washington 




39 


Camden, Chowan, Currituck, Dare, Pasquotank, Perquimans 




40 


Duplin, Sampson 





(c) Mental Health Planning Regions. Ttie DHHS has assigned the counties of the state to the following Mental Health ^ 

Planning Regions for purposes of the State Medical Facilities Plan: S 



1297 NORTH CAROLINA REGISTER January 14, 2000 14:14 



TEMPORARY RULES 



MENTAL HEALTH PLANNING REGIONS (Area Number and Constituent Counties) 



Western (W) 



A Cherokee. Clay. Graham. Haywood. Jackson. Macon. Swain 

2 Buncombe. Madison. Mitchell. Yancey 

3 Alleghany. Ashe. Avery. Watauga, Wilkes 

4 Henderson. Transylvania 

5 Alexander. Burke, Caldwell. McDowell 



6 Rutherford. Polk 

7 Cleveland 

8 Gaston. Lincoln 

9 Catawba 

JO Mecklenburg 

1 1 Cabarrus. Rowan. Stanly. LInion 



North Central (NO 

\2 Surry. Yadkin. Iredell 

13 Forsyth. Stokes. Davie 

14 Rockingham 

15 Guilford 

16 Alamance. Caswell 

JJ Orange. Person. Chatham 

18 Durham 

\ 19 Vance. Gran\ ille. Franklin. Warren 



South Central (.SO 
[20 Davidson 

Anson. Hoke. Montgomery. Moore. Richmond 
[ 22 Bladen. Columbus. Robeson. Scotland 
1 23 Cumberland 

24 Lee. Harnett 

25 Johnston 

26 Wake 

27 Randolph 



Eastern (E) 



28 Brunswick. New Hanover. Pender 

29 Onslow 

30 Wayne 

31 Wilson. Greene 

32 Edgecombe. Nash 

33 Halifax 

34 Carteret. Craven. Jones. Pamlico 

35 Lenoir 

36 Put 

37 Bertie. Gates. Hertford. Northampton 

38 Beaufort. Hyde. Martin, Tyrrell. Washington 

39 Camden. Chowan. Currituck. Dare. Pasquotank. Perquimans 

40 Duplin. Sannison 



(d) Radiation Oncology Treatment Center Planning Areas. The DHHS has assigned the counties of the state to the following 
Radiation Oncology Treatment Center Planning Areas for purposes of the State Medical Facilities Plan: 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1298 



,..»..«..-_,.».^..»,^-.......„a„,,„a>. 



TEMPO RAR Y R ULES 



RADIATION ONCOLOGY TREATMENT CENTER PLANNING AREAS 



Area Number Constituent Counties 



1 Cherokee, Clay. Graham. Jackson. Macon. Swain 

2 Buncombe. Haywood. Madison. McDowell. Mitchell. Yancey 

3 Ashe, Avery. Watauga 

4 Henderson, Polk. Transylvania 

5 Alexander. Burke. Caldwell. Catawba 

6 Rutherford. Cleveland. Gaston. Lincoln 

7 Mecklenburg. Anson. Union 

8 Iredell. Rowan 

9 Cabarrus, Stanly 

10 Alleghany. Forsyth. Davidson. Davie. Stokes. Surry. Wilkes. Yadkin 

11 Guilford. Randolph. Rockingham 

12 Alamance. Chatham. Orange 

13 Durham. Caswell. Granville. Person. Vance. Warren 

14 Moore. Hoke. Lee, Montgomery. Richmond. Scotland 

15 Cumberland. Bladen. Sampson. Robeson 

16 New Hanover. Brunswick. Columbus. Pender 

17 Wake. Franklin. Harnett. Johnston 

18 Lenoir. Duplin, Wayne 

19 Craven. Carteret. Onslow. Jones. Pamlico 

20 Nash. Halifax. Wilson. Northampton. Edgecombe 

21 Pitt. Beaufort. Bertie. Greene. Hertford. Hyde, Martin, Washington 

22 Pasquotank, Camden, Chowan, Currituck. Dare, Gates, Perquimans, Tyrrell 



^|l 



(e) Ambulatory Surgical Facility Planning Areas. The DHHS has assigned the counties of the state to the following 
Ambulatory Surgical Facility Planning Areas for purposes of the State Medical Facilities Plan: 



AMBULATORY SURGICAL FACILITY PLANNING AREAS 



Area Constituent Counties 



i 


Alamance 


2 


Alexander, Iredell 


3 


Alleghany, Surry, Wilkes 


4 


Anson, Gaston, Mecklenburg, Union 


5 


Ashe, Avery, Watauga 


6 


Beaufort, Hyde 


7 


Bertie, Gates, Hertford 


8 


Bladen, Cumberland, Robeson, Sampson 


9 


Brunswick, Columbus, Duplin, New Hanover, Pender 


10 


Buncombe, Haywood, Madison, Mitchell, Yancey 


11 


Burke, McDowell, Rutherford 


12 


Cabarrus, Rowan, Stanly 


13 


Caldwell, Catawba, Lincoln 


14 


Camden, Currituck, Dare, Pasquotank, Perquimans 


15 


Carteret, Craven, Jones, Onslow, Pamlico 


16 


Caswell. Chatham, Orange 


11 


Cherokee, Clay, Graham, Jackson, Macon, Swain 


18 


Chowan, Tyrrell, Washington 


19 


Cleveland 



f 



1299 NORTH CAROLINA REGISTER January 14, 2000 14:14 



TEMPORAR Y RULES 



\ 



20 

2i 

22 
23 
24 
25 
26 
27 
28 
29 
30 



Davidson, Davie. Forsyth. Stokes. Yadkin 

Duriiam, Granville. Person 

Edgecombe. Halifax. Nash. Northampton 

Franklin. Harnett. Johnston, Wake 

Greene. Lenoir. Martin. Pitt 

Guilford. Randolph. Rockingham 

Henderson. Polk. Transylvania 

Hoke. Lee. Montgomery. Moore. Richmond. Scotland 

Vance. Warren 

Wayne 

Wilson 



(f) Magnetic Resonance Imaging (MRI) Planning Areas. The DHHS has assigned the counties of the state to the following 
Magnetic Resonance Imaging Planning Areas for purposes of the State Medical Facilities Plan: 



MAGNETIC RESONANCE IMAGING PLANNING AREAS 



Area Number Constituent Counties 



2 

3 

4 

3 

6 

7 

8 

9 

10 

li 

12 

13 

lA 

15 

16 

11 

13. 

13. 

20 

21 

22 
23 
24 

25 



Cherokee, Clay. Graham. Jackson. Macon. Swain 

Haywood 

Buncombe. Madison. McDowell. Mitchell. Yancey 

Ashe. Avery. Watauga 

Alexander. Burke. Caldwell. Catawba. Lincoln 

Cleveland. Rutherford 

Henderson. Polk, Transylvania 

Gaston 

Cabarrus. Montgomery. Rowan. Stanly 

Iredell 

Alleghany. Davie. Forsyth. Stokes. Surry. Wilkes. Yadkin 

Alamance 

Durham, Caswell. Granville. Person, Vance. Warren 

Chatham. Orange 

Davidson. Guilford. Randolph. Rockingham 

Richmond, Scotland 

Anson. Mecklenburg. Union 

Cumberland. Hoke. Moore. Robeson, Sampson 

Franklin, Harnett. Johnston. Lee. Wake 

Lenoir. Wayne. Wilson 

Bladen. Brunswick. Columbus. Duplin. New Hanover. Pender 

Carteret. Craven. Jones. Onslow. Pamlico 

Beaufort. Bertie. Greene. Hyde. Martin. Pitt. Washington 

Edgecombe. Halifax. Nash. Northampton 

Camden. Chowan, Currituck. Dare. Gates. Hertford. Pasquotank. Perquimans. Tyrrel 



Histoiy Note: Aiithoriry G.S. 1 31 £-176(25): I31E-I77(l): 13 J £-183(1): 
Temporary Adoption £ff. Jauuan' ]_^ 2000. 



6254 SERVICE AREAS AND PLANNING AREAS 

(a) An acute care bed's service area |s the acute care bed 
Thinning area in which the bed is located. The acute care bed 



planning areas are the hospital service systems which are 
defined as follows: 

( 1) a group of hospitals located in the same city, or within 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



lllllllllllllll I I lUlll IIIIMIMIMIIIllllllil 



1300 



.„. „ i=CTaujv.>«^CTT»»CTagau,iHn^ 



TEMPORARY RULES 



ten miles of each (Uher. or in the same county if one or more 
hospitals in the county are under common ownership; or, 

(2) a single hospital that is not included in one ot" the 
tirc^ups of hospitals described in Subparagraph (1 >. 

(b) A rehabilitation bed's seryice area is the rehabilitation bed 
planning area in which the bed is located. The rehabilitation bed 
planning areas are the health seryice areas which are defined in 
lO NCAC .^R .6253(a). 

(c) An ambulatory surgical facility's seryice area is the 
ambulatory surgical facility planning area in which the facility 
is located. The ambulatory surgical facility planning areas are 
the multi-county groupings as defined in lONCAC 3R .625.3(e). 

(d) A radiation oncology treattnent center's and linear 
accelerator's seryice area is the radiation oncology treatment 
center and linear accelerator planning area in which the facility 
is located. The radiation oncology treatment center and linear 
accelerator planning areas are the multi-county groupings as 
defined in 10 NCAC .3R .6253(d). 

(e) A magnetic resonance imaging scanner's seryice area is 
the magnetic resonance imaging planning area in which the 
scanner is located. The magnetic resonance imaging planning 
areas are the multi-county groupings as defined in 10 NCAC 3R 
.6253(f). 

(f) A nursing care bed's seryice area is the nursing care bed 
planning area in which the bed is located. Each of" the 100 
counties in the Slate is a separate nursing care bed planning area. 

(g) A home health agency office's seryice area is the home 
health agency office planning area in which the office is located. 
Each of the 100 counties m the State is a separate home health 
agency office planning area. 

(h) A dialysis station's seryice area is the dialysis station 
planning area in which the dialysis station is located. Each of the 
100 counties in the State is a separate dialysis station planning 
area. 

iiJ A hospice's seryice area is the hospice planning area in 
which the hospice is located. Each of the 100 counties in the 
State is a separate hospice planning area. 

{jj A hospice inpatient facility bed's service area is the 
hospice inpatient facility bed planning area in which the bed is 
located. Each of the 100 counties in the State is a separate 
hospice inpatient facility bed planning area. 

(k) A psychiatric bed's service area is the psychiatric bed 
planning area in which the bed is located. The psychiatric bed 
planning areas are the Mental Health Planning Regions which 
are defined in 10 NCAC 3R .6253(c). 

(Jj With the exception of chemical dependency (substance 
abuse) detoxification-only beds, a chemical dependency 
treatment bed's service area is the chemical dependency 
treatment bed planning area in which the bed is located. The 
chemical dependency (substance abuse) treatment bed planning 
areas are the Mental Health Planning Regions which are defined 
in 10 NCAC 3R .6253(c). 

(m) A chemical dependency detoxification-only bed's service 
area is the chemical dependency detoxification-only bed 
planning area in \shich the bed is located. The chemical 
dependency (substance abuse) detoxification-only bed planning 



areas are the Mental Health Planning Areas which are defined in 
10 NCAC 3R .6253(b). 

(n) An intermediate care bed for the mentally retarded' s 
service area is the intermediate care bed for the mental I yy 
retarded planning area in which the bed is located. The 
intermediate care bed for the mentally retarded planning areas 
are the Mental Health Planning Areas which are defined in 10 
NCAC 3R .6253(b). 

History- Note: Authority G.S. 1 31 £-176(25); J31E-]77(I); 

131 £-183(1). 

Temporarx Adoption £ff. Januarx 1, 2000. 

.6255 REALLOCATIONS AND ADJUSTMENTS 

[a] REALLOCATIONS. 

( 1 ) Reallocations shall be made only to the extent that 
need determinations in J_0 NCAC 3R .6256 through 
.628 1 indicate that need exists after the inventories are 
revised and the need determinations are recalculated. 

(2) Beds or services which are reallocated once in 
accordance with this Rule shall not be reallocated 
again. Rather, the Medical Facilities Planning Section 
shall make any necessary changes in the next annual 
State Medical Facilities Plan. 

(3) Dialysis stations that are withdrawn, relinquished, not 
applied for, decertified, denied, appealed, or pending 
the expiration of the 30 day appeal period shall not be 
reallocated. Instead, any necessary redetermination of 
need shall be made in the next scheduled publicationM 
ol' the Semiannual Dialysis Report. 

(4) Appeals of Certificate of Need Decisions on 
Applications. Need determinations of beds or 
services for which the CON Section decision to 
approve or deny the application has been appealed 
shall not be reallocated until the appeal is resolved. 

(A) Appeals Resolved Prior to August 17: If such 
an appeal is resolved in the calendar year prior 
to August 17, the beds or services shall not be 
reallocated bx the CON Section; rather the 
Medical Facilities Planning Section shall make 
the necessary changes in the next annual State 
Medical Facilities Plan, except for dialysis 
stations which shall be processed pursuant to 
Subparagraph (a] i3j ot' this Rule. 

(B) Appeals Resolved on or After August 17: If 
such an appeal is resolved on or after August 
JJ in the calendar year, the beds or service s. 
except for dialysis stations, shall he made 
available for a review period to be determined 
by the CON Section, but beginning no earlier 
than 60 days from the date that the appeal is 
resolved. Notice shall be mailed by the 
Certificate of' Need Section to all persons on 
the mailing hst for the State Medical Facilities ^ 
Plan, no ]ess than 45 days prior to the due date" 
for receipt of new applications. 



1301 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



TEMPORARY RULES 



(5) Withdrawals and Relinquishments. Except for 
dialysis stations, a need determination for which a 
certificate of need is issued, but is subsequently 
withdrawn or rcHnquished, is available for a review 
period to be determined by the Certificate of Need 
Section, but beginning no earlier than 60 days from: 

(A) the last date on which an appeal of the notice 
of intent to withdraw the certificate could be 
filed if no appeal is filed. 

(B) the date on which an appeal of the withdrawal 
is finally resolved against the holder, or 

(C) the date that the Certificate oi" Need Section 
receives from the holder of the certificate of 
need notice that the certificate has been 
voluntarily relinquished. 

Notice of the scheduled review period for the 
reallocated services or beds shall be mailed by the 
Certificate of Need Section to all persons on the 
mailing list for the State Medical Facilities Plan, no 
less than 45 days prior to the due date for submittal of 
the new applications. 

(6) Need Determinations for which No Applications are 
Received 

(A) Services or Beds with Scheduled Review in the 
Calendar Year on or Before September 1 : The 
Certificate of Need Section shall not reallocate 
the services or beds in this category for which 
no applications were received, because the 
Medical Facilities Planning Section will have 
sufficient time to make any necessary changes 
in the determinations of need for these services 
or beds in the next annual State Medical 
Facilities Plan, except for dialysis stations. 

(B) Services or Beds with Scheduled Review in the 
Calendar Year After September U Except for 
dialysis stations, a need determination in this 
category for which no application has been 
received by the last due date for submittal of 
applications shall be available to be applied for 
in the second Category I review period in the 
next calendar year for the applicable HSA. 
Notice of the scheduled review period for the 
reallocated beds or services shall he mailed by 
the Certificate of Need Section to aU persons 
on thie mailing list for the State Medical 
Facilities Plan, no less than 45 days prior to the 
due date for submittal of new applications. 

(7) Need Determinations not Awarded because 
Application Disapproved. 

(A) Disapproval in tlie Calendar Year prior to 
August 17: Need determinations or portions of 
such need for which applications were 
submitted but disapproved by the Certificate of 
Need Section before August 17. shall not be 
reallocated by the Certificate of Need Section. 
Instead the Medical Facilities Planning Section 
shall make the necessary changes in the next 



18] 



annual State Medical Facilities Plan If no 

appeal is filed, except for dialysis stations. 

(B) Disapproval in the Calendar Year on or After 

August 17: Need determinations or portions of 

such need for which applications were 

submitted but disapproved by the Certificate of 

Need Section on or after August 17. shall be 

reallocated by the Certificate of Need Section. 

except for dialysis stations. A need in this 

category shall be available for a review period 

to he determined by the Certificate of Need 

Section but beginning no earlier than 95 days 

from the date the application was disapproved. 

if no appeal is filed. Notice of tfie scheduled 

review period for the reallocation shall be 

mailed by the Certificate of Need Section to all 

persons on the mailing list for the State 

Medical Facilities Plan, no less than 80 days 

prior to the due date for submittal of tlie new 

applications. 

Reallocation ot' Decertified ICF/MR Beds. If an 

ICF/MR facility's Medicaid certification is 

relinquished or revoked, the ICF/MR beds in the 

facility shall be reallocated by the Department of 

Health and Human Services. Division of Facility 

Services. Medical Facilities Planning Section 

pursuant to the provisions of the following sub-parts. 

The reallocated beds shall only be used to convert 

five-bed ICF/MR facilities into six-bed facilities. 

(A) If the number ot' five-bed ICF/MR facilities in 

the mental health planning region in which the 

beds are located equals or exceeds the number 

of reallocated beds, the bjeds shall be 

reallocated solely within the planning region 

after considering the recommendation of the 

Regional Team of Developmental Disabilities 

Services Directors. 



(B) If the number of five-bed ICF/MR facilities in 
the mental health planning region in which the 
beds are ktcated is less than the number of 
reallocated beds, the Medical Facilities 
Planning Section shall reallocate the excess 
beds to other planning regions after 
considering the recommendation of the 
Developmental Disabilities Section in the 
Division ot' Mental Health. Developmental 
Disabilities, and Substance Abuse Services. 
The Medical Facilities Planning Section shall 
then allocate the beds among the planning 
areas within those planning regions after 
considering the recommendation of the 
appropriate Regional Teams of De\elopmental 
Disabilities Services Directors. 



iC] 



The Department of Health and Human 
Services. Division of Facility Ser\ices. 
Certificate of Need Section shall schedule 
rev lews of applications for these beds pursuant 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1302 



mnmnT""-— ■'■"^° 



TEMPORARY RULES 



to Subparagraph (a)(5) of this Rule. 
ibj CHANGES IN NEED DETERMINATIONS. 
UJ The need determinations m K) NCAC 3R 



,6256 



ill 



13] 



through .6281 shall be revised continuously 
throughout the calendar year to reflect all changes in 
the inventories of: 

(A) the health services listed at G.S. I .^ 1 E- 1 76 
(I6)f; 

(B) health service facilities; 

(C) health service facility beds; 

(D) dialysis stations; 

(E) the equipment listed at G.S. 131E-176 (16)fl; 
and 

(F) mobile medical equipment; 

as those changes are reported to the Medical Facilities 

Planning Section. However, need determinations in 

m NCAC 3R .6256 through .628 1 shall not be 

reduced if the relevant inventory is adjusted upward 

30 days or less prior to the first day of the applicable 

review period. 

Inventories shall be updated to reflect: 

(A) decertification of home health agencies or 



Need Section to all persons on the mailing list for the 
State Medical Facilities Plan, no less than 45 days 
prior to the due date for submittal of the new^ 
applications. 9 

HistoiyNote: Authority G.S. 1 31E-176(25); ] 3]E-177(] ): 

I3IE-I83{h): 

Teinporarx Adoption Eff. Jaimarx I. 2000. 

.6256 ACUTE CARE BED NEED DETERMINATION 
(REVIEW CATEGORY A) 

It is determined that there is a need for 30 additional acute 
care beds in Onslow County. It is determined that there is no 
need for additional acute care beds in any other county. 

History Note: Authority G.S. 131E-176{25): 1 31E-177{1): 

I3IE-I83fh): 

Teinporarx Adoption Eff. January L^ 2000. 

.6257 REHABILITATION BED NEED 

DETERMINATION (REVIEW CATEGORY E) 

It is determined that there is no need for additional 



m 

(C) 

ID) 

(E) 
IF) 



offices, intermediate care facilities for the rehabilitation beds in any HSA. 
mentally retarded, and dialysis stations; 
delicensure of health service facilities and 



health service facility beds; 

demolition, destruction, or decommissioning of 

equipment as listed at G.S. 131E-176(16)fl 

and s; 

elimination or reduction of a health service as 

listed at G.S. 131E-176(l6)f; 

psychiatric beds licensed pursuant to G.S. 

13IE-184(c); 

certificates of need awarded, relinquished, or 

withdrawn, subsequent to the preparation of 

the inventories jn the State Medical Facilities 

Plan; and 
(G) corrections of errors in the inventory as 

reported to the Medical Facilities Planning 

Section. 
Any person who is interested in applying for a new 
institutional health service for which a need 



HistoiyNote: Authority G.S. 131E-176(25): 1 31E-177(1): 

I3IE-183(b): 

Teinporarx Adoption Eff. Januarx 1_^ 2000. 

.6258 AMBULATORY SURGICAL FACILITIES 
NEED DETERMINATION (REVIEW 
CATEGORY E) 

It is determined that there is no need for an additional 
Ambulatory Surgical Facility in any Ambulatory Surgical 
Facility Planning Area. 

HistoiyNote: Authority G.S. 131E-176{25): 131E-177{1); 

131E-I83{b): 

Teinporarx Adoption Eff. Januarx I, 2000. 

.6259 OPEN HEART SURGERY SERVICES NEED 
DETERMINATIONS (REVIEW CATEGORY H) 

It is determined that there is no need for additional open heart 



I 



determination is made in 1 NCAC 3R .6256 through surgery services anywhere in the State. 



.6281 



obtain information about updated 
inventories and need determinations from the Medical 
Facilities Planning Section. 
(4) Need determinations resulting from changes in 
inventory shall be available for a review period to be 
determined by the Certificate of Need Section, but 
beginning no earlier than 60 days from the date of the 
action identified m Subparagraph (b)(2) of this Rule, 
except for dialysis stations which shall be determined 
by the Medical Facilities Planning Section and 
published in the next Semiannual Dialysis Rep(^rt. 
Notice of the scheduled review period for tfie need 
determination shall be mailed by the Certificate of 



HistoiyNote: Authority G.S. 1 31 E-176(25): ]31E-J77( 1 ); 

I3IE-I83(b): 

Teinporarx Adoption Eff. Januarx I, 2000. 

.6260 HEART-LUNG BYPASS MACHINES NEED 

DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is no need for an additional heart- 
lung bypass machine in any county. 

HistoiyNote: Authority G.S. 131E-176{25); 131E-I77{I):{ 
I31E-I83(b); 



1303 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



TEMPORARY RULES 



Teniporarx Adoption Eff. Janiiarx I, 2000. 

.6261 FIXED CARDIAC CATHETERIZATION 
I EQUIPMENT AND FIXED CARDIAC 

" ANGIOPLASTY EQUIPMENT NEED 

DETERMINATION (REVIEW CATEGORY J) 

It is determined that there js a need for one additional tlxed 
unit of cardiac catheterization or cardiac angioplasty equipment 
in Cabarrus County. It is determined that there is no need for 
additional fixed units of cardiac catheterization or cardiac 
angioplasty equipment in any other county. 

Histoiy Note: Authority G.S. 1 31 E-176{25): inE-l77{l): 

131E-I83{b): 

Temporarx Adoption Eff. Januarx 1, 2000. 



.6262 
.6263 



(RESERVED FOR FUTURE CODIFICATION) 



BURN INTENSIVE CARE SERVICES NEED 
DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is no need for additional burn 
intensiye care seryices anywhere in the State. 

History Note: Authority G.S. I31E-176(25): I31E-I77( 1): 

131 E-1 83(h): 

Temporarx Adoption Eff. Januarx [^ 2000. 

.6264 POSITRON EMISSION TOMOGRAPHY 
SCANNERS NEED DETERMINATION 
(REVIEW CATEGORY H) 

It is determined that there is no need for additional positron 
emission tomography scanners anywhere in the State. 

History Note: Aitthoritx G.S. I31E-176(25): 13IE-I77( 1): 

I3IE-I83(h): 

Tenipor-ary Adoption Eff. Janiiar-x I. 2000. 

.6265 BONE MARROW TRANSPLANTATION 
SERVICES NEED DETERMINATION 
(REVIEW CATEGORY H) 

It is determined that there is no need for additional allogeneic 
or autologous bone marrow transplantation services anywhere 



in the State. 



History Note: Authority G.S. 131E-176(25): 1 3!E-177( 1) 



131E-183(b): 

Temporary' Adoption Eff. Januarx 1_^ 2000 . 

.6266 SOLID ORGAN TRANSPLANTATION 
SERVICES NEED DETERMINATION 
(REVIEW CATEGORY H) 

It is determined that there is jto need for new solid organ 
transplant services anywhere in the State. 

History Note: Authority G.S. 131E-176{25): 131E-177( 1); 

I31E-183(b}; 

Ternpor-ar'x Adoption Eff. Januarx 1_^ 2000. 

.6267 GAMMA KNIFE NEED DETERMINATION 
(REVIEW CATEGORY H) 

It is determined that there is no need for an additional gamma 
knife anywhere in the State. 

History Note: Authority- G.S. 131E-176(25): 131E-177( I j; 

131E-183(b): 

Temporary Adoption Eff. Januar-x 1_^ 2000. 

.6268 LITHOTRIPTER NEED DETERMINATION 
(REVIEW CATEGORY H) 

It is determined that there is no need for additional 
lithotripters anywhere in the State. 

History Note: Authority G.S. 131E-176(25): 131E-177( I ): 

131E-183(b): 

Temporar-x Adoption Eff. Januar-x I, 2000. 

.6269 RADIATION ONCOLOGY TREATMENT 

CENTERS NEED DETERMINATION (REVIEW 
CATEGORY H) 

It is determined that there is a need for three additional 
Radiation Oncology Treatment Centers in Radiation Oncology 
Treatment Center Service Area L^( Durham, Caswell. Granville. 
Person. Vance. Warren). It ]s determined that there |s no need 
for an additional Radiation Oncology Treatment Center in any 
other service area in the State. 

History Note: Authority G.S. 1 31E-176(25): 1 31E-177( 1 ); 

I31E-183(b): 

Temporary Adoption Eff. January 1, 2000. 



6270 MAGNETIC RESONANCE IMAGING SCANNERS NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is a need for seven additional fixed Magnetic Resonance Imaging (MRI) scanners in the following 
Magnetic Resonance Imaging Planning Areas. It is determined that there is no need for an additional fixed MRI scanner in any other 



planning area in the State, except as otherwise provided in 10 NCAC 3R. 6271. 



Magnetic Resonance Imaging Planning Areas 
(Constituent Counties) 



MRI Scanners 
Need Determination 



(Buncombe. Madison. McDowell, Mitchell. Yancey) 
(Cabarrus. Montgomery. Rowan. Stanly) 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1304 



TEMPORAR Y RULES 



12 (Alamance) 

13 (Caswell. Durham. Granville. Person. Vance. Warren) 
15 (Davidson. Guilford. Randolph. Rockingham) 

21 (Bladen. Brunswick. Columbus. Duplin. New Hanover. Pender) 



f 



History Note: Authority G.S. 131 £-176(25): 1 31 £-177(1): 13l£-183(b); 
Temporary Adoption £ff. Januarx 1_^ 2000. 

.627 1 MAGNETIC RESONANCE IMAGING SCANNERS NEED DETERMINATION FOR PLANNING RADIATION 
ONCOLOGY TREATMENTS (REVIEW CATEGORY H) 

(a) It is determined that there is a need for one Magnetic Resonance Imaging (MRI) scanner that shall be limited for use in radiation 
oncology treatments in the following magnetic resonance imaging planning area. It is determined that there is no need for any other 
MRI scanner for radiation oncology treatments in any other planning area in the State. 

( b) Only hospitals and radiation oncology treatment centers in Magnetic Resonance Imaging Planning Area 1 3 can apply to acquire 
the Magnetic Resonance Imaging (MRI) Scanner referenced in paragraph (a) of this Rule. Applications forcertitlcates of need shall 
show that the proposed Magnetic Resonance Imaging (MRI) Scanner: 

( 1 ) shall be developed concurrently with, or subsequent to construction on the same site of a radiation oncology treatment 
center as defined in G.S. 1 3 1 E- 1 76( 1 8a); and 

(2) shall be used exclusively for and dedicated to therapeutic purposes in the treatment of radiation oncology patients. 



Magnetic Resonance Imaging Planning Area 
(Constituent Counties) 



MRI Scanners 
Need Determination 



13 (Caswell. Durham. Granville. Person. Vance. Warren) 
January 10.200 



History Note: Authority G.S. I3I£-I76(25): 13] £-177(1): 131£-183(b): 
Temporary Adoption Eff. Januarx 1. 2000. 



#1 



.6272 NURSING CARE BED NEED DETERMINATION (REVIEW CATEGORY B) 

It is determined that the counties listed in this Rule need additional Nursing Care Beds as specified. It is determined that there is 
no need for additional Nursing Care Beds in any other counties, except as otherwise provided in 10 NCAC 3R .6273. 





Number of Nursing Care 


County 


Beds Needed 


Caswell 


20 


Rockingham 


50 


Perquimans 


10 



History Note: Authority G.S. 1 3 ! £-176(25): 131E-177(l); 13l£-183(b}: 
Temporary Adoption £ff. January L^ 2000. 



.6273 DEMONSTRATION PROJECT FOR 

CONTINUING CARE OF ADULTS WITH 

DEVELOPMENTAL DISABILITIES AND 

THEIR AGING CAREGIVERS (REVIEW 

CATEGORY J) 

(a) It is determined that five Medicaid-certitled nursing care 

beds are needed as part of a Continuing Care Retirement 

Community (CCRC) to demonstrate the efficacy of serving 

persons with developmental disabilities and their aging care 

givers in an environment that assures permanence and continuity 

of care. 



with developmental disabilities are available for development by 
any CCRC licensed by the Department of Insurance, in any area 
of the State. 



(b) The five Medicaid-certified nursing care beds for adults 



(c) The five Medicaid-certified nursing care beds for adults 
with de\elopmental disabilities shall he de\eloped at a single 
site. 

(d) The five Medicaid-certified nursing care beds shall be 
used exclusively by adults with developmental disabilities. For 
purposes oi' this Rule, the definition ot' "deyelopmental ^ 
disability" found in G.S. 1 1C-3(12A) shall apply. 

(e) Ah applicant shall document arrangements with the Area 
Mental Health Authority for interagency screening in 



J305 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



TEMPORARY RULES 



compliance with "single portal" statutes, with emphasis on 
coordination of services and resources hetween the CCRC and 
the community at-large. 
u (J} Tlie live Medicaid-certified nursing care beds shall he 
used exclusively to meet the needs of adults with developmental 
disabilities with whom the facility has continuing care contracts 
(in compliance with the Department of Insurance statutes and 
rules) who have lived in a non-nursing unit of the continuing 
care retirement community for a period ol' at least 30 days. 
Exceptions shall be allowed when an adult with a developmental 
disability ]s admitted to the nursing unit at the time that 
individual's parent or guardian moves into a non-nursing unit. 
or when the medical condition requiring nursing care was not 
known to exist or be imminent when the individual became a 
party to the continuing care contract. Priority shall always be 



ratings from DP adults and their family members. 

including evaluation of special training for staff. 
(i) Annual data reporting shall continue, until directed 
otherwise by the North Carolina State Health Coordinating 
Council. 

Histoiy Note: Authority G.S. ]3]E-J76(25); J3JE-]77(] ): 

131E-183(b): 

Temporan- Adoption Eff. Jcmiiaiy 1. 200G. 

.611A HOME HEALTH AGENCY OFFICE NEED 
DETERMINATION (REVIEW CATEGORY F) 

It is determined that there is a need in Pamlico County for one 
Medicare-certified home health agency or office. It is 
determined that there is no need for additional Medicare- 



given to aljowanggeiionswith certified home health agencies or offices in any other county. 

in the "least restrictive" setting possible. Individuals 
recommended for placement in Medicaid-certified nursing care 



beds must meet aH Medicaid eligibility criteria for 
reimbursement to be obtained. The CCRC shall document that 
"nursing level care" is essential and that less restrictive 
alternatives have been exhausted. 



(g) The demonstration project shall guarantee continuity of 
care for adults with developmental disabilities within the CCRC. 
including access to aH health and rehabilitation services. 
Specialized training shall be provided for all CCRC staff on the 
care and management of adults with developmental disabilities. 
General activities within the CCRC shall be designed to promote 
inclusion of residents with developmental disabilities and to 
'promote the quality of life for all residents. The applicant shall 
demonstrate that residents of the CCRC will he treated with 
dignity and respect, maintaining independence as long as 
possible and allowing an orderly transition between levels of 
care. 



(h) TTie demonstration project shall provide data to evaluate 
the effectiveness of this type of program, including an annual 
report to the Long-Term Care Committee of the NC State Health 
Coordinating Council with regard to at least the following 
measures: 

(1 ) number of adults with developmental disabilities 
admitted to the CCRC. 

(2) patient origin data (for all CCRC residents) - county 
or state of residence before c(^ming to the CCRC. 

(3) occupancy rate of the five Medicaid-certified DP 
nursing care beds. 

(4) occupancy rate of other nursing care beds. 

(5) average length of stay for DP adults in independent 
or assisted living before placement in a Medicaid- 
certified PP nursing care bed. 

(6) average length of stay for patients in the five 
Medicaid-certified PP nursing care beds. 

(7) average length of stay for patients in other nursing 
care beds. 

(8) cost data ^ particularly with regard to provision of 
specialized training for a[l staff regarding persons 
with developmental disabilities, and 

(9) consumer satisfaction ;; anecdotal information and 



Histoiy Note: Authority G.S. 1 31 E-176{25): 1 31 E-I77{I): 

131E-I83(b): 

Temporan Adoption Eff. January 1, 2000. 

.6275 DIALYSIS STATION NEED DETERMINATION 
METHODOLOGY 

(a) The Medical Facilities Planning Section (MFPS) shall 
determine need for new dialysis stations two times each calendar 
year, and shall make a report of such determinations available to 
all who request it. This report shall be called the North Carolina 
Semiannual Pialysis Report (SPR). Data to be used for such 
determinations, and their sources, are as follows: 

( 1) Numbers of dialysis patients, by type, county and 
facility, from the Southeastern Kidney Council. Inc. 
(SEKC) and the Mid-Atlantic Renal Coalition. Inc. as 
of December 31. 1 999 for the March SDR and as of 
June 30. 2000 for the September SDR. 

(2) Certificate of need decisions, decisions appealed, 
appeals settled, and awards, from the Certificate of 
Need Section. DPS. 

Facilities certified for participation in Medicare, from 
the Certification Section, PFS. 



13] 
(4] 



Need determinations for which certificate of need 



decisions have not been made, from MFPS recc^rds. 
Need determinations in this report shall be an integral part of 
the State Medical Facilities Plan, as provided in G.S. 131E-183. 
(b) Need for new dialysis stations shall he determined as 
follows: 

(1) County Need 

(A) The average annual rate (%) of change in total 
number of dialysis patients resident in each 
county from the end of 1 995 to the end of 1 999 
is multiplied by the county's 1999 year end 
total number of patients in the SPR. and the 
product is added to each county's most recent 
total number of patients reported in the SPR. 
The sum is the county's projected total 2000 
patients. 

(B) The percent of each county's total patients who 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1306 



TEMPORARY RULES 



were home dialysis patients at the end of 1999 is multiplied by 
the county's projected total 2000 patients, and the product is 
subtracted from the county's projected total 2000 patients. The 
remainder is the county's projected 2000 in-center dialysis 
patients. 

(C) The projected number ot' each county's 2000 
in-center patients is divided by .^.2. TTie 
quotient [s the projection of the county's 2000 
in-center dialysis stations. 

(D) From each county'sprojected number of 2000 
in-center stations is subtracted the county's 
number ot' stations certitled for Medicare. 
CON-approved and awaiting certification, 
awaiting resolution of CON appeals, and the 
number represented by need determinations in 
previous State Medical Facilities Plans or 
Semiannual Dialysis Reports for which CON 
decisions have not been made. The remainder 
is die county's 2000 projected surplus or 
deficit. 

(E) If a county's 2000 projected station deficit is 
ten or greater and the SDR shows that 
utilization of each dialysis facility in the county 
is SO^f or greater, the 2000 county station need 
determination is the same as the 2000 projected 
station deficit, fi' a county's 2000 projected 
station deficit is less than ten or if the 
utilization of any dialysis facility in the county 
is less than 80'/r, the county's 2000 station need 
determination is zero. 

(2) Facility Need: A dialysis facility located in a county 
for which the result of the County Need methodology 
is zero in the reference Semiannual Dialysis Report 
(SDR) is determined to need additional stations to the 
extent that: 

(A) Its utilization, reported in the current SDR, is 
.^.2 patients per station or greater. 

(B) Such need, calculated as follows, is reported in 
an application for a certificate of need: 



Hi] 

mi] 



(ij The facility's number of in-center 
dialysis patients reported in the previous 
SDR (SDR |) is subtracted from the^ 
number of in-center dialysis patients y 
reported in the current SDR (SDR p). 
The difference is multiplied by 2 to 
project the net in-center change for 1 
year. Divide the projected net in-center 
change for the year by the number of in- 
center patients from SDR i to determine 
the projected annual growth rate. 
The quotient from Subpart (b)(2)(B)(i) 
of this Rule is divided by 1 2. 
The quotient from Subpart (b|(2)(B)(ii) 
of this Rule is multiplied by the number 
of months from the most recent month 
reported in the current SDR until the 
end of calendar 2000. 
The product from Subpart (b)(2)(B)(iii) 
of this Rule is multiplied by the number 
of the facility's in-center patients 
reported in the current SDR and that 
product is added to such reported 
number of in-center patients. 
The sum from Subpart (b)(2)(B)(iv) of 
this Rule is divided by .^.2. and from the 
quotient is subtracted the facility's 
current number of certified and pending 
stations as recorded in the current SDR. A 
The remainder is the number of stations ^ 
needed. 



(iv) 



Iv] 



(C) The facility may apply to expand to meet the 

need established in Subpart (b)(2)(B)(v) of this 

Rule, up to a maximum of ten stations. 

(c) TTie schedule for publication of the North Carolina 

Semiannual Dialysis Reports (SDR) and for receipt of certificate 

of need applications based on each issue of this report in 2000 

shall be as follows: 



Data for 
Period Ending 


Receipt of 
SEKC Report 


Publication 
of SDR CON 


Receipt of 

Applications 


Beginning 
Review Dates 


Dec. .^1, 1999 
June .•^O. 2000 


Feb. 29. 2000 
Aug. .^1. 2000 


March 20. 2000 
Sept. 20. 2000 


May 15.2000 
Nov. 15.2000 


June 1.2000 
Dec. 1.2000 



(d) An application for a certificate of need pursuant to this 
Rule shall be considered consistent with G.S. L^1E-I8.^(a)( 1 ) 
only if it demonstrates a need by utilizing one of the methods of 
determining need outlined m this Rule. 

(e) An application for a new End Stage Renal Disease facility 
shall not he approved unless it documents the need for at least 1 
stations based on utilization of 3^ patients per station per week, 
except as otherwise provided in 10 NCAC ,3R .6276. 



(f) Home patients shall not be included in determination of 
need for new stations. 

Histoiy Note: Authority G.S. 131E-I76(25j: I3IE-177( 1 ): 

I3IE-I83{b): 

Teiiiporarx Adoption Eff. Jaiuian' 1. 2000. m 

.6276 DIALYSIS STATION ADJUSTED NEED 



1307 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



TEMPORARY RULES 



DETERMINATION (REVIEW CATEGORY G) 

It is determined that there is a need in McDowell County for 
six dialysis stations. Need for additional dialysis stations in 
p other counties will he determined as provided in J_0 NCAC 3R 
'.6215. 



History Note: Authority G.S. 1 3 IE-I76(25): 1 31 E-177{1 ); 

131E-I83(b): 

Temporary Adoption Eff. Januarx l^ 2000. 

.(,211 HOSPICE NEED DETERMINATION (REVIEW 
CATEGORY F) 

It is determined that there is no need for additional Hospices 
in any county. 

Histoiy Note: Authority G.S. J3JE-176(25): 13JE-]77(J ); 

I3IE-I83(b): 

Temporary Adoption Eff. January 1_^ 2000. 

.6278 HOSPICE INPATIENT FACILITY BED NEED 
DETERMINATION (REVIEW CATEGORY F) 



(a) Sin'jle Counties. Single counties with a projected deficit 
of six or more beds are determined to have a bed need equal to 
the projected deficit. It [s determined that there is no need for 
additional sintile county hospice inpatient facility beds. 

(b) Contiguous Counties. It is determined that an 



combination of two or mcire contiguous counties taken from the 
following list shall ha\ e a need for new hospice inpatient facihty 
beds if the combined bed deficit for the grouping of contiguous 
counties totals six or more beds. Each county hi a grouping of 
contiguous counties must have a deficit of at least one and no 
more than fwy beds. The need for the grouping of contiguous 
counties shall be the sum of the deficits in the individual 
counties. For purposes of this Rule, "contiguous counties" shall 
mean a grouping of North Carolina counties which includes the 
county in which the new hospice inpatient facility is proposed to 
be located and any one or more of the North Carolina counties 
which have a common border with that county, even if the 
borders only touch at one point. No county may be included in 
a grouping of contiguous counties unless U is listed in the 
following tabic: 





County 


Hospict 
BedD 


; Inpatient 

eficit 








Transylvania 




i 








Haywood 




i 






1 


Jackson 




i 








Rutherford 




2 








Watauga 




i 








Wilkes 




i 








Yadkin 




i 








Stokes 




i 








Davidson 




2 








Randolph 




2 








Rockingham 




2 








Surry 




2- 








Alexander 




i 








Cabarrus 




2 








Gaston 




3 








Iredell 




2 








Lincoln 




i 








Mecklenburg 




3 








Rowan 




i 








Stanly 




1 








Union 




2 








Lenoir 




i 








Durham 




3 






J 


Johnston 




1 






1 


Bladen 




1 








Brunswick 




1 






14:14 




NORTH CAROLINA REGISTER 


January 14, 2000 


1308 



TEMPORARY RULES 



Columbus 

Cumberland 

Moore 

Riehmond 

Montgomery 

Robeson 

Scotland 

Hoke 

Bertie 

Franklin 

Craven 

Duplin 

Edgecombe 

Hertford 

Nash 

Northampton 

Halifax 

Onslow 

Pitt 

Wilson 



'i 



Histoiy Note: Authority G.S. 131E-176{25); 131E-177(1): 13IE-I83{b): 
Temporarx Adoption Eff. Januarx I. 2000. 

.6279 PSYCHIATRIC BED NEED DETERMINATION (REVIEW CATEGORY C) 

It is determined that there is no need for additional psychiatric beds in any Mental Health Planning Region. 

Histoiy Note: Authority G.S. 131E-176{25): 131E-177{1): J31E-]83(bJ: 
Tei)iporar\- Adoption Eff. January I, 2000. 

.6280 CHEMICAL DEPENDENCY (SUBSTANCE ABUSE) TREATMENT BED NEED DETERMINATION (REVIEW 
CATEGORY C) 

(a) Adult Treatment Beds. It is determined that there is no need for additional chemical dependency (substance abuse) treatment 
beds for adults. 

(b) Adult Detox-Only Beds. It is determined that there is a need for additional detox-only beds for adults. The following table 
lists the mental health planning areas that need dctox-only beds for adults and identifies the number of such beds needed [n each 
planning area. It is determined that there is no need for additional detox-only beds for adults in any other mental health planning area. 



• 



Mental Health Planning Areas 


M 


:ntal Health 


Number of Detox-Only 


(Constituent Counties) 


EL 


inning Regions 


Beds Needed 


1 (Jackson, Haywood, Macon, Cherokee, 




W 


10 


Clay. Graham, Swain) 








4 (Transylvania, Henderson) 




W 


10 


5 (Caldwell. Burke, Alexander, McDowell) 




W 


10 


6 (Rutherford, Polk) 




w 


10 


7 (Cleveland) 




w 


10 


1 1 (Rowan, Cabarrus, Stanly, Union) 




w 


10 


12 (Surry, Yadkin, Iredell) 




NC 


2 


14 (Rockingham) 




NC 


10 


16 (Alamance, Caswell) 




NC 


6 



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January 14, 2000 



14:14 



TEMPORARY RULES 



u 

19 

♦ i 

25 
2h 

30 

31 

32 
33 
34 
35 
37 
38 
39 

40 


(Oranse, Person, Chatham) 


NC 

NC 

SC 

SC 

SC 

SC 

jE 

E 

E 

E 

E 

E 

E 

E 

E 

E 


2 
10 
10 
5 

2 

31 

4 

10 

6 

iO 

10 

10 

4 

5 

10 

10 


(Vance, Granville, Franklin, Warren) 


(Davidson) 


(Robeson, Bladen, Scotland, Columbus) 


(Johnston) 


(Wake) 


(Wayne) 


(Wilson, Greene) 


(Edcecombe, Nash) 


(Halifax) 


(Craven, Jones, Pamlico, Carteret) 


(Lenoir) 


(Hertford, Bertie, Gates, Northampton) 


(Beaufort, Washington, Tvrrell, Hyde, Martin) 


(Pasquotank, Chowan, Perquimans, Camden, 


Dare, Currituck) 
(Duplin, Sampson) 



(c) "Detox-only beds for adults" are chemical dependency treatment beds that are occupied exclusively by persons who are 
eighteen years of age or older who are experiencing physiological withdrawal from the effects of alcohol or other drugs. 

(d) Detox-only beds for adults may be developed outside of the mental health planning area jn which they are needed if: 

(1 ) The beds are developed in a contiguous mental health planning area that is within the same mental health planning region, 
as del'med by 10 NCAC 3R .6253(c); and 

(2) The program board in the planning area in which the beds are needed and the program board in the planning area in which 
the beds are to be developed each adopt a resolution supporting the development of the beds m the contiguous planning area. 

^ (e) Chi Id/ Adolescent Treatment Beds. It is determined that there is no need for additional chemical dependency (substance abuse) 
treatment beds for children/adolescents. 



Histoiy Note: Authority G.S. 131 £-176(25): 131 £-177(1): 131£-183(b); 
Temporarx Adoption £ff. January A 2000. 



.6281 INTERMEDIATE CARE BEDS FOR THE 
MENTALLY RETARDED NEED 
DETERMINATION (REVIEW CATEGORY 

C) 
(a) Adult Intermediate Care Beds for the Mentally Retarded. 
It is determined that there is no need for additional Adult 
Intermediate Care Beds for the Mentally Retarded (ICF/MR 



beds), except as provided in Rule 10 NCAC 3R .6255(a)(8). 



(b) Child/Adolescent Intermediate Care Beds for the Mentally 
Retarded. It is determined that there is no need for additional 



Child/ Adolescent Intermediate Care Beds for the Mentally 



Retarded (ICF/MR beds). 



Histoiy Note: Authority G.S. 13 1E-176(25): 13 1 E-177( 1 ): 

1 31 £- 183(h): 

Tentporan- Adoption £ff. Januarx [^ 2000. 



6282 POLICIES FOR GENERAL ACUTE CARE 
HOSPITALS 

(a) Use of Licensed Bed Capacity Data for Planning 
Purposes. For planning purposes the number of licensed beds 



shall be determined by the Division of Facility Services in 



accordance with standards found in JO NCAC 3C .6200 and 
.3102(d). 

(b) Utilization of Acute Care Hospital Bed Capacity- 
Conversion of underutilized hospital space to other needed 
purposes shall he considered an alternative to new construction. 
Hospitals falling below utilization targets In paragraph (d) of this 
Rule are assumed to have underutilized space. Any such 
hospital proposing new construction must clearly demonstrate 
that it is more cost-effective than conversion of existing space. 

(c) Exemption from Plan Provisions for Certain Academic 
Medical Center Teaching Hospital Projects. Projects for which 
certitlcates of need are sought by academic medical center 
teaching hospitals may qualify for exemption from provisions of 
10 NCAC 3R .6256 through .6281. 

(1) The State Medical Facilities Planning Section shall 
designate as an Academic Medical Center Teaching 
Hospital any facility whose application for such 
designation demonstrates the following characteristics 
of the hospital: 

(A) Serves as a primary teaching site for a school 
of medicine and at least one other health 
professional school, providing undergraduate. 



14:14 



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January 14, 2000 



1310 



TEMPORARY RULES 



graduate and postgraduate education. 

(B) Houses extensive hasic medical science and 
clinical research programs, patients and 
equipment. 

(C) Serves the treatment needs of patients from a 
broad geographic area through multiple 
medical specialties. 

(2) Exemption from the provisions of 1 NCAC 3R .6256 
through .628 1 shall be granted to projects submitted 
by Academic Medical Center Teaching Hospitals 
designated prior to January \^ 1990 which projects 
comply with one of the following conditions: 

(A) Necessary to complement a specified and 
approved expansion of tfie number or types of 
students, residents or faculty, as certified by 
the head of the relevant associated professional 
school; or 

(B) Necessary to accommodate patients, staff or 
equipment for a specified and approved 
expansion of research activities, as certified by 
the head of the entity sponsoring the research; 
or 

(C) Necessary to accommodate changes in 
requirements of specialty education accrediting 
bodies, as evidenced by copies of documents 
issued by such bodies. 

(3) A project submitted by an Academic Medical Center 
Teaching Hospital under this Policy that meets one of 
the above conditions shall also demonstrate that the 
Academic Medical Center Teaching Hospital's 
teaching or research need for the proposed project 
cannot be achieved effectively at any non-Academic 
Medical Center Teaching Hospital provider which 
currently offers the service for which the exemption 
is requested and which is within 20 miles of the 
Academic Medical Center Teaching Hospital. 

(4) Any service, facility or equipment that results from a 
project submitted under this Policy after January J^ 
1999 shall be excluded from the inventory of that 
service, facility or equipment in the State Medical 
Facilities Plan. 

(d) Reconversion to Acute Care. Facilities that have 
redistributed beds from acute care bed capacity to psychiatric, 
rehabilitation, or nursing care use, shall obtain a certificate of 
need to convert this capacity back to acute care. Applicants 
proposing to reconvert psychiatric, rehabilitation, or nursing care 
beds back to acute care beds shall demonstrate that the hospital's 
average annual utilization of licensed acute care beds as reported 
in the most recent licensure renewal application form is equal to 
or greater than the target occupancies shown below, but shall not 
be evaluated against the acute care bed need determinations 
shown in 10 NCAC 3R .6256. 



Licensed Acute Care Bed Capacity 
1-49 



100- 199 
200 - 699 
700 -I- 



75% 
80% 
81.5% 



^ 



(e) Replacement of Acute Care Bed Capacity. The evaluation 
of proposals for either partial or total replacement of acute care 
beds (i.e., construction of new space for existing acute care 
beds) shall be evaluated against the utilization of the total 
number of acute care beds in the applicant's hospital in relation 
to the target occupancy of the total number of beds in that 
hospital which is determined as follows: 

Total Licensed Acute Care Beds Target Occupancy (Percent) 
i;49 65% 

50;99 70% 

100- 199 
200 - 699 
700 + 



75% 
80% 
81.5% 



50-99 



Percent Occupancy 
65% 
70% 



(f} Allogeneic Bone Marrow Transplantation Services. 
Allogeneic bone marrow transplants shall be provided only in 
facilities having the capability of doing HLA matching and of 
management of patients having solid organ transplants. At their 
present stage of development it is determined that allogeneic 
bone marrow transplantation services shall be limited to 
Academic Medical Center Teaching Hospitals. 

(g) Solid Organ Transplantation Services. Solid organ 
transplant services shall be limited to Academic Medical Center 
Teaching Hospitals at this stage of the development of this^ 
service and availability of solid organs. ^ 

(h) Cardiac Catheterization Equipment and Services. Mobile 
cardiac catheterization equipment, as defined in 10 NCAC 3R 
.1613(14). and services shall only be approved for development 
on hospital sites. Fi xed cardiac catheterization equipment means 
cardiac catheterization equipment that is not mobile cardiac 
catheterization equipment, as that term is defined in 10 NCAC 
3R . 1613(14). 

(i) Magnetic Resonance Imaging Scanners Need 
Determination for Planning Radiation Oncology Treatments. 
Magnetic resonance imaging scanners for planning radiation 
oncology treatments, as defined in 1 NCAC 3R .627 1 . shall not 
be counted in the inventory for magnetic resonance imaging 
(MRI) scanners. 

(jj Magnetic Resonance Imaging Scanners. Fixed magnetic 
resonance imaging (MRI) scanners means MRI scanners that are 
not mobile MRI scanners, as that term is defined in 10 NCAC 
3R .2713(5). 

History- Note: Authority G.S. 131E-176{25); 131E-177{1}: 

131E-183(b): 

Temporary Adoption Eff. Januan- ]_^ 2000. 

.6283 POLICIES FOR INPATIENT 

REHABILITATION SERVICES 

(a) After applying other required criteria, when superiority ^ 
among two or more competing rehabilitation facility certificate 



1311 



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January 14, 2000 



14:14 In 



TEMPORARY RULES 



of need applications is uncertain, favorable consideration shall 
be given to proposals that make rehabilitation services more 
accessible to patients and their families or are part of a regional 
rehabilitation network. 



(b) Rehabilitation care which can be provided in an. outpatient 
or home setting shall be provided ifi these settings. All new 
inpatient rehabilitation programs are required to provide 
outpatient rehabilitation services as part of their service delivery 
programs. 



Hislon- Note: Authority G.S. 1 31 E-176{25): 13IE-I77{1): 

13IE-I83(b): 

Teiiworai-\ Adoption Eff. Januarx I, 2000. 

.6284 POLICY FOR AMBULATORY SURGICAL 
FACILITIES 

After applying other required criteria, when superiority among 
two or more competing ambulatory surgical facility certificate 
of need applications is uncertain, favorable consideration shall 
be given to "multi-specialty programs" over "specialty 
programs" in areas where need is demonstrated in 10 NCAC 3R 
.6258. A multi-specialty ambulatory surgical program shall 
have the same meaning as detlned in G.S. 131E-176( 1 5a) and an 
ambulatory surgical facility shall have the same meaning as 
defined in G.S. 131E-176( la). 

HistonNote: Authority G.S. 1 31 E-I76(25): ] 3 1 E-177( 1 }; 

131E-I83(b): 

Temporary Adoption Eff. Janitai-y 1_^ 2000. 

.6285 POLICY FOR PROVISION OF HOSPITAL- 
BASED LONG-TERM NURSING CARE 

(a) A certificate of need may be issued to a hospital which is 
licensed under G.S. 1 3 1 E. Article 5, and which meets the 



conditions set forth below and in 10 NCAC 3R .1 100. to convert 
up to ten beds from its licensed acute care bed capacity for use 
as hospital-based long-term nursing care beds without regard to 
determinations of need in U) NCAC 3R .6272 it" the hospital: 

(1 ) is located in a county which was designated as non- 
metropolitan tix the U. S^ Office of Management and 
Budget on January 1 . 2000; and 

(2) on January J_, 2000. had a licensed acute care bed 
capacity of 150 beds or less. 

The certificate of need shall remain in force as long as the 
Department of Health and Human Services determines that the 



hospital is meeting the conditions outlined in this Rule. 

(b) "Hospital-based long-term nursing care" is defined as 
long-term nursing care provided to a patient who has been 



directly discharged from an acute care bed and cannot be 



immediately placed in a licensed nursing facility because of the 



unavailability of a bed appropriate for the individual's needs. 



Beds developed under this Rule are intended to prcnide 



placement for residents only when placement in other lorg-term 



care beds is unavailable in the geographic area. Hospitals which 



ucvelop beds under this Rule shall discharge patients to other 



nursing facilities with available beds in the geographic area as 



soon as possible where appropriate and permissible under 



applicable law. Necessary docuinenlation including copies of 
physician referral forms (FL 2) on all patients in hospital-based 
nursing units shall be made available for review upon request by 
duly authorized representatives of licensed nursing facilities. 

(c) For purposes ot' thns Rule, beds in hospital-based long- 
term nursing care shall be certified as a "distinct part" as defined 
by the Health Care Financing Administration. Beds in a 
"distinct part" shall be converted from the existing licensed bed 
capacity of the hospital and shall not be reconverted to any other 
category or type of bed without a certificate of need. An 
application for a certificate of need for reconverting beds to 
acute care shall be evaluated against the hospital'sservice needs 
utilizing target occupancies shown in jO NCAC 3R .6282(d). 
without regard to the acute care bed need shown in JO NCAC 
3R .6256. 

(d) A certificate of need issued for a hospital-based long-term 
nursing care unit shall remain in force as long as the following 
conditions are met: 



( 1) the beds shall be certified for participation in the Title 
XVIII (Medicare) and TiUe 2^ (Medicaid) 
Programs: 

(2) the hospital discharges residents to other nursing 
facilities in the geographic area with available beds 
when such discharge is appropriate and p ermissible 
under applicable law; 

(3) patients admitted shall have been acutely ill inpatients 
of an acute hospital or its satellites immediately 
preceding placement in the unit. 

(e) The granting of beds for hospital-based long-term nursing 
care shall not allow a hospital to convert additional beds without 
first obtaining a certificate of need. 



(f) Where any hospital, or the parent corporation or entity of 
such hospital, any subsidiary corporation or entity of such 
hospital, or any corporation or entity related to or affiliated with 
such hospital by common ownership, control or management: 
(1) applies for and receives a certificate of need for long- 
term care bed need determinations in JO NCAC 3R 
.6272; or 



I2J 



currently has nursing home beds licensed as a part of 
the hospital under G.S. 131E. Article 5; or 
currently operates long-term care beds under the 
Federal Swing Bed Program (P.L. 96-499). such 
hospital shall not be eligible to apply for a certificate 
of" need for hospital-based long-term care nursing 
beds under this Rule. Hospitals designated by the 
State of North Carolina as Critical Access Hospitals 
pursuant to Section 1 820(f) of the ScK'ial Security Act. 
as amended, which have not been allocated long-term 
care beds under provisions oi G.S. 1 3 1 E- 1 75 through 
1 3 1 E- 1 90. may apply to develop beds under this Rule. 
However, such hospitals shall not develop long-term 
care beds both to meet needs determined in 1 NCAC 
3R .6272 and this Rule. 



(g) Beds certified as a "distinct part" under this Rule shall be 
counted m the inventory of existing long-term care beds and 
u.sed iji the calculation of unmet long-term care bed need for the 
general population of a planning area. Applications for 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1312 



TEMPORARY RULES 



certificates of need pursuant to this Rule shall be accepted only 
For the March _[ review cycle. Beds awarded under this Rule 
shall be deducted from need determinations for the county as 
shown in 10 NCAC 3R .6272. The Department of Health and 
Human Services shall monitor this program and ensure that 
patients affected by this Rule are receiving appropriate services, 
and that conditions under which the certificate of need was 
granted are being met. 

HistoiyNote: Authority G.S. 131E-I76(25); 131E-177(1 ): 

131E-183{b): 

Temporan' Adoption Eff. Januarx L^ 2000. 

.6286 POLICY FOR PLAN EXEMPTION FOR 
CONTINUING CARE RETIREMENT 
COMMUNITIES 

(a) Qualified continuing care retirement communities may 
include from the outset, or add or convert bed capacity for long- 
term nursing care without regard to the bed need shown in 10 
NCAC 3R .6272. To qualify for such exemption, applications 
for certificates of need shall show that the proposed long-term 
nursing bed capacity: 

( I ) Will only be developed concurrently with, or 

subsequent to. construction on the same site of 

facilities for both of the following levels of care: 

(A) independent living accommodations 

(apartments and homes) for persons who are 

able to carry out normal activities of daily 

livin" without assistance; such 



this exemption shall be excluded from the inventory used to 
project bed need for the general population. All long-term 
nursing beds developed pursuant to the provisions of Chapter , 
920. Session Laws 1983. or Chapter 445. Session Laws 1985 ^ 
shall be excluded from the inventory. 

History Note: Authority G.S. ]31E-176(25); ]3]E-]77(] ); 

131E-I83(b): 

Temporarx Adoption Eff. Januarx 1, 2000. 

.6287 POLICY FOR DETERMINATION OF NEED 
FOR ADDITIONAL NURSING BEDS IN 
SINGLE PROVIDER COUNTIES 

When a long-term care facility with fewer than 80 nursing 
care beds is the only nursing care facility within a county, it may 
apply for a certificate of need for additional nursing beds in 
order to bring the minimum number of beds available within the 
county to no more than 80 nursing beds without regard to the 
nursing bed need determination for that county as listed in 10 
NCAC 3R .6272. 

History Note: Authority G.S. 13IE-I76(25); ]31E-177( 1 ): 

131E-183(b): 

Temporarx Adoption Eff. Januarx I, 2000. 



.6288 POLICY FOR RELOCATION OF CERTAIN 
NURSING FACILITY BEDS 

A certificate of need to relocate existing licensed nursing 
facility beds to another county(ies) may be issued to a facility 



accommodations 



be in the form of' licensed as a nursing facility under G.S. Chapter 1 3 1 E. Article 



4 



m 



apartments, flats, houses, cottages, and rooms; 
licensed adult care home beds for use by 
persons who, because of age or disability 
require some personal services, incidental 
medical services, and room and board to assure 
their safety and comfort. 



6. Part A. provided that the conditions set forth in this Rule and 
in 10 NCAC 3R .1 100 and the review criteria in G.S. 1 3 1 E- 



(2] 



m 



Will be used exclusively to meet the needs of persons 
with whom the facility has continuing care contracts 
(in compliance with the Department of Insurance 
statutes and rules) who have lived in a non-nursing 
unit of the continuing care retirement community for 
a period of at least 30 days. Exceptions shall be 
allowed when one spouse or sibling is admitted to the 
nursing unit at the time the other spouse or sibling 
moves into a non-nursing unit, or when the medical 
condition requiring nursing care was not known to 
exist or be imminent when the individual became a 
party to the continuing care contract. 
Reflects the number of beds required to meet the 
current or projected needs of residents with whom the 
facility has an agreement to provide continuing care, 
after making use of aU feasible alternatives to 
institutional nursing care. 



tii 



Will not be certified for participation in the Medicaid 
program, 
(b) One half of the long-term nursing beds developed under 



183(a) are met. 

(I ) A facility applying for a certificate of need to relocate 
nursing facility beds shall demonstrate that: 

(a) it is a non-profit nursing facility supported by 
and directly affiliated with a particular religion 
and that it is the only nursing facility in North 
Carolina supported by and affiliated with that 
religion; 

(b) the primary purpose for the nursing facility's 
existence is to provide long-term care to 
followers of' the specified religion in an 
environment which emphasizes religious 
customs, ceremonies, and practices; 

(c) relocation of the nursing facility beds to one or 
more sites is necessary to more effectively 
provide long-term nursing care to followers of 
the specified religion in an environment which 
emphasizes religious customs, ceremonies, and 
practice s; 

(d) the nursing facility is expected to serve 
followers of the specified religion from a 
multi-county area; and 

(e) the needs ot' the population presently served' 
shall be met adequately pursuant to G.S. 13 1 E- 



1313 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



TEMPORARY RULES 



I 



183. 

(2) Exemption from the pre^visions of 10 NC AC 3R .6272 
shall be granted to a nursing facihty for purposes of" 
reloeating existing licensed nursing beds to another 
county provided that it complies with all of the criteria 
listed in this Rule. 

(3) Any certificate of need issued under this Rule shall be 
subject to the following conditions: 

(a) the nursing facility shall rekicate beds in at 
least two stages over a period of at least six 
months or such shorter period of time as is 
necessary to transfer residents desiring to 
transfer to the new facility and otherwise make 
acceptable discharge arrangements for 
residents not desiring to transfer to the new 
facility; and 

(b) the nursing facility shall provide a letter to the 
Licensure and Certification Section, on or 
before the date that the first group of beds are 
relocated, irrevocably committing the facility 
to relocate all of the nursing facility beds for 
which h has a certificate of need to relocate; 
and 

subsequent to providing the letter to the 
Licensure and Certification Section described 
in Sub-item (3>(b) of this Rule, the nursing 
facility shall accept no new patients in the beds 
which are being relocated, except new patients 
who, prior to admission, indicate their desire to 
transfer to the facility's new location! s). 



(b) Need Determination for at Least One Home Health 
Agency per County. When a county has no Medicare-certified 
home health agency office physically located within the county's 
borders, need for a new home health agency office in the county 
is thereby established through this paragraph. 

Histon- Note: Autlwrin- G.S. J31E-]76(25); 13JE-177(1 ): 

B1E-I83{b): 

Temporarx Adoption Eff. Januarx I, 2000. 

.6290 POLICY FOR RELOCATION OF DIALYSIS 
STATIONS 

Relocations of existing dialysis stations are allowed only 
within the host county and to contiguous counties currently 
served by the facility. Certillcate of need applicants proposing 
to relocate dialysis stations shall: 

(I) demonstrate that the proposal shall not result in a 
deficit in the number of dialysis stations in the county 
that would be losing stations as a result of the 



(£} 



' 



proposed project, as retlected in the most recent 
Semiannual Dialysis Report, and 
(2) demonstrate that the proposal shall not result in a 
surplus of dialysis stations in the county that would 
gain stations as a result of the proposed project, as 
reflected in the most recent Semiannual Dialysis 
Report. 

Histon- Note: Authority G.S. 131E-176(25); 131E-177{1 ); 

13IE-I83{b): 

Temporarx Adoption Eff. Jaiiitarx 1, 2000. 

.6291 POLICIES FOR PSYCHIATRIC INPATIENT 
FACILITIES 

(a) Transfer of Beds from State Psychiatric Hospitals to 
Community Facilities. Beds in the State psychiatric hospitals 
used to serve short-term psychiatric patients may be relocated to 
community facilities. However, before beds are transferred out 
of the State psychiatric hospitals, appropriate services and 
programs shall be available in the community. State hospital 
beds which are relocated to community facilities shall be closed 
within ninety days following the date the transferred beds 
become operational in the community. Facilities p ro posing to 
operate transferred beds shall commit to serve the type of short- 
term patients normally placed at the State psychiatric hospitals. 
To help ensure that relocated beds will serve those persons who 
would have been served by the State psychiatric hospitals, a 
proposal to transfer beds from a State hospital shall include a 
written memorandum of agreement between the area 

of written notice of such decision from the ht^me health agency's MH/DD/S AS program serving the county where the beds are to 

be located, the Secretary of Health and Human Services, and the 
person submitting ihe proposal. 

(b) Allocation ot' Psychiatric Beds. A hospital submitting a 
Certificate of Need application to add inpatient psychiatric beds 
shall convert excess licensed acute care beds to psychiatric beds. 
In determining excess licensed acute care beds, the hospital shall 
subtract the average occupancy rate for Us licensed acute care 
beds oyer the previous 1 2-month period from the appropriate 



Histon, Note: Authority G.S. 13]E-]76(25): 131 E-177i 1 ): 

I3IE-I83(b): 

Temporan' Adoption Eff. Janitan- 1_^ 2000. 

.6289 POLICIES FOR HOME HEALTH SERVICES 

(a) Need Determination Upon Termination of County's Sole 
Home Health Agency. When a home health agency's board of 
directors, or in the case of a public agency, the responsible 
public body, votes to discontinue the agency's provision of 
Medicare-certified home health services and to decertify the 
of fice; and 

( 1 ) the agency is the only home health agency with an 
office physically located in the county; and 

(2) the agency is not being lawfully transferred to 
another entity; 

need for a new home health agency office in the county is 



thereby established through this paragraph. Following receipt 



■'hief administrative officer, the Certificate of Need Section shall 



give public notice of the need for one home health agency office 



in the county, and the dates of the review of applications to meet 



the need. Such notice shall be given no less than 45 days prior 



X) the final date for receipt of applications in a newspaper 
serving the county and to home health agencies located outside 



the county reporting serving county patients in the most recent 



licensure applications on file. 



14:14 



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January 14, 2000 



1314 



TEMPORARY RULES 



target occupancy rate for acute care beds listed in 10 NCAC 3R 
.6282(d) and multiply the difference by the number of its 
existing licensed acute care beds. 

(c) Linkages Between Treatment Settings. An applicant 
applying for a certitlcate of need for psychiatric inpatient facility 
beds shall document that the affected area mental health, 
developmental disabilities and substance abuse authorities have 
been contacted and invited to comment on the proposed services. 

History Note: Authority G.S. 1 31E-I76{25): 1 3}E-177{1): 

131E-I83(b): 

Temporarx Adoption Eff. Jcunian' I, 2000. 

.6292 POLICY FOR CHEMICAL DEPENDENCY 
TREATMENT FACILITIES 

In order to establish linkages between treatment settings, an 
applicant applying for a certificate of need for chemical 
dependency treatment beds, as defined in G.S. 131E-I76(5b). 
shall document that the affected area mental health, 
developmental disabilities and substance abuse authorities have 
been contacted and in vited to comment on the proposed services. 

History Note: Authority G.S. I3IE-I76(25): I31E-177(1): 

131E-I83(b): 

Temporarx Adoption Eff. Jaituarx ]_^ 2000. 

.6293 POLICIES FOR INTERMEDIATE CARE 
FACILITIES FOR MENTALLY RETARDED 

In order to establish linkages between treatment settings, an 
applicant applying for a certificate of need for intermediate care 
beds for the mentally retarded shall document that the affected 
area mental health, developmental disabilities and substance 
abuse authorities have been contacted and invited to comment on 
the proposed services. 

History Note: Authority G.S. 131E-176(25): 13JE-177(1): 

I3IE-I83(h): 

Temporan- Adoption Eff. Januaty I, 2000. 



TITLE 13 - DEPARTMENT OF LABOR 

Rule-making Agency: North Carolina Department of Labor 

Rule Citation: 13 NCAC 15 .0201 

Effective Date: January I. 2000 

Findings Reviewed and Approved by: Julian Maim. HI 

Authority for the rule-making: G.S. 95-1 10.5 

Reason for Proposed Action: Adoption of this temporaiy rule 
permits the ageiuy to continue enforcing safety regidations with 
respect to inclined stairway chairlifts and inclined and vertical 
wheelchair lifts. The ride adopts and incorporates by reference 



the new American National Standard Safety Code for Platform 
Lifts and Stairway Chairlifts, A18. 1-1999, which is effective on 
January I, 2000. Additionally, the rule adopts a minor change^ 
to the standards on inclined stairway chairlifts and inclined anc^ 
vertical wheelchair lifts. The change will add flexibility by 
permitting the use of an alternative signaling device. In addition 
to use of a bell with a stop switch, the use of a means of2-way 
communication will also be permitted. 

Comment Procedures: Written comments may be submitted to 
Angela S. Waldorf at NC Department of Labor, 4 W. Edenton 
Street, Raleigh, NC 27601. 

CHAPTER 15 - ELEVATOR AND AMUSEMENT 
DEVICE DIVISION 

SECTION .0200 - CODES AND STANDARDS 

.0201 ELEVATOR SAFETY CODE 

(a) The design, construction, installation, alteration, repair, 
replacement, inspection, maintenance and operation of all new 
installations of: 

(1) Elevators, dumbwaiters, escalators, and moving 
walks, incl in ed stai r way cha ir l i fts. and incl i ned and 
ve r tical wheelcha ir l i fts shall conform to these Rules 
and the American National Standard Safety Code for 
Elevators and Escalators. Al 7. 1-1990 which is 
incorporated by reference subject to the modifications 
provided in Paragraph (b) of this Rule. Thisi 
incorporation includes subsequent amendments and 
editions of the Code. 

(2) The design, construction, installation, alteration, 
repair, replacement, inspection, maintenance and 
operation of all new installations of inclined stairway 
chairlifts. and inclined and vertical wheelchair lifts 
shall conform to these Rules and the American 
National Standard Safety Code for Platform Lifts and 
Stairway Chairlifts. A18. 1-1999 which is 
incorporated by reference subject to the modifications 
provided in Paragraph (b) of this Rule. This 
incorporation includes subsequent amendments and 
editions of this Code. 

(b) The provisions of the American National Standard Safety 
Code for Elevators and Escalators, A 17. 1 shall be subject to the 
following modifications: 

(1) Rule 100.1c(2) - Observations Elevators Not Fully 
Enclosed. Change the rule to read as follows: 
For observation elevators which are not fully 
enclosed, protection at landings shall be provided as 
follows: 

(A) An enclosure shall be provided which shall 
extend a minimum of ten feet above the floor. 

(B) The enclosure shall be constructed of 
unperforated material. 

(C) Enclosures shall be located in the general line 
of the hoistway. Horizontal clearance shall 



II 



IP 



7375 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



TEMPORARY RULES 



be the same as stated in Section 108. 

(2) Rule 111.10 - Access to Hoistways for Emergency 
Purposes. In the first sentence change the word 
A "may" to "shall." 

^ (?) Rule 204. 2d - Side Emergency Exits. Side 
Emergency exits shall not be permitted in elevator 
cars. 

(c) Tlie rules of this Chapter shall control when any conflict 
between these rules and the ANSI Code exists. 

(d) Copies of the American National Standard Safety Code 
for Elevators and Escalators are available for public inspection 
in the office of the Division, and may be obtained from the 
American Society of Mechanical Engineers, United Engineering 
Center. 345 East 47" Street, New York, New York 1001 7. The 
cost is ninety-six dollars ($96.00) per copy. 

Histon- Note: Authority G. S. 95-11 0.5: 

Eff. August I. 1987: 

Amended Eff. May 1. 1992: 

Temporarx Ameudnieiit Eff. Januan- I_^ 2000. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: DENR/Divi.sioii ofForestiy 

Rule Citation: 15A NCAC 9C.1 lOl-.l 104 

Effective Date: Januaiy 12, 2000 

Findings Reviewed and Approved by: Julian Mann. Ill 

Authority for the rule-making: G.S. 113-60.40: 113-60.45 

Reason for Proposed Action: To initiate ruie.s to a.'i.^ist in 
implementing the Prescribed Burning Act. passed by the NC 
General Assembly in May, 1999. 

Comment Procedures: The public is invited to make comments 
on these rules. Comments may be submitted to Mr. David 
Januan, Division of Forestiy, 1616 Mail Service Center, 
Raleigh, NC 27699-1616. (919} 733-2162, e.xt. 232. 

CHAPTER 9 - DIVISION OF FOREST RESOURCES 

SUBCHAPTER 9C - DIVISION PROGRAMS 

SECTION .1100 - N. C. PRESCRIBED BURNING ACT 

.1101 PURPOSE 

The purpose of this act is to limit liability from smoke 
resulting from the burning of forest lands, providing the proper 
l ^rocedures and requirements are being followed. 

\Histoty Note: Authority G.S. 133-8; 113-60.21 through 113- 



60.31: I43B-10: 

Temporary Adoption Eff. Januan- 12, 2000. 

.1102 BURNER CERTIFICATION 

The N. C. Division of Forest Resources, hereafter referred to 
as DPR, shall conduct a burner Certification program composed 
of the following: 

(1) Each candidate shall attend and successfully complete 
a prescribed burn school consisting of instruction on: 
The N. C. Prescribed Burning Act, weather, fuels, 
smoke management, firing lechniciues and planning, 
executing and mopping up the burn: a field trip to 
examine burn sites before and after burning: and a 
written test. DFR shall offer a minimum of one of 
these schools annually at a charge ot' (twenty five 
dollars) $25.00 per participant. 

(2) An alternative abbreviated school may be provided 
candidates who have successfully completed an 
approved prescribed burn school other than the DFR 
school. Other acceptable prescribed burn schools 
shall be approved by DFR if ah topics contained [n 
the N. C Prescribed Burn School were included. 
Candidates are responsible for providing 
documentation of topics covered and successful 
completion to DFR. This abbreviated school shall 
include the N. C Prescribed Burn Act and the N.C. 
Smoke Management System. A minimum of one of 
these schools shall be offered annually if there are 
requests. 

(3) In order to be certified, each candidate whether they 
train under Paragraph [aj or [bj of this Rule shall 
successfully conduct a prescribed burn under the 
observation of a certified burner. The candidate must 
submit to DFR a completed DFR Certified Burner 
checkoff sheet, signed by a certified burner. 

(4) DFR personnel shall investigate burns conducted by 
certified burners which cause smoke or fire prc^blems. 
DFR shall issue a written warning to burners found to 
be burning contrary to the N. C Prescribed Burning 
act for the first infraction and will cancel their burner 
certification for Uie second. Burners who lose their 
certification may again become certified after one 
year bv reapplving and completing the full 
requirements for certification under Paragraph (a) of 
this Rule. 

(5) DFR will conduct prescribed burn update training 
annually. N. C Certified burners must attend one of 
these prescribed burn training sessions every five 
years to maintain their certification. 

(6) Successful candidates shall receive both a numbered 
certificate and pocket card. These will show a five 
year expiration date. A new certificate will be issued 
after the certified burner provides evidence of 
attendance at a prescribed burn update school. 

Histoiy Note: Authority G.S. 133-8: 113-60.21 through 113- 
60.31: 1438-10: 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1316 



TEMPORAR Y RULES 



Temporan- Adoption Eff. Jaiiiiarx 12, 2000. 



Temporarx Adoption Eff. Janitai'x 12. 2000. 



.1103 FOREST LAND 

The benefits ol' this Act only apply to burning of forest lands 
as defined in the Society of American Foresters publication. The 
Dictionary of Forestry. Key points of this definition are: land 
10% or more stocked with trees, including land which formerly 
had tree cover and that will be reforested. Minimum size for the local DFR district office. DFR shall retain these 
forest land is one acre. Minimum strip width is 120 feet. This prescriptions for five years. 
act does not apply to brush piles, windrows or land clearing 
debris. 



.1104 PRESCRIPTION FILING . 

Prior to each prescribed burn, the burner must file a copy olW 
the fully completed prescription for that burn with an employee 
of DFR. This employee shall note the date and time the 
prescription was received, sign the prescription and forward it to 



Histoty Note: Aiithorit}- G.S. 133-8; J 13-60.2] through 113- 
60.31: 143B-10: 



Histoty Note: Authority G.S. 133-. 

60.31: I43B-10: 

Teniporarx Adoption Eff. January- 12, 2000. 



113-60.21 through 113- 



I 



1317 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



RULES REVIEW COMMISSION 



This Section contains the agenda for the next meeting of the Rules Review Commission on Thursday, January 20. 2000, 10:00 
a.m. , at 1 307 Glenwood Ave., Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any rule before 
the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Friday, 
January \X 2000, at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Commission at 
9 19-7.^.^-272 1 . Anyone w ishing to address the Commission should notify the RRC staff and the agency at least 24 hours prior 
to the mcetinii. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Vice Chairman 
John Arrowood 

Laura Devan 

Jim Fundcrburke 

David Twiddy 



Appointed by House 

Paul Powell, Chairman 

Walter Futch 

Jennie J. Hayman 

George Robinson 



R. 



Palmer Sugg 



RULES REVIEW COMMISSION MEETING DATES 



January 20, 2000 
February 17,2000 



March 16,2000 
April 1,3,2000 



LOG OF FILINGS 
RULES SUBMITTED: NOVEMBER 20, 1999 THROUGH DECEMBER 20, 1999 



AGENCY/DIVISION 



RULE NAME 



RULE CITATION 



ACTION 



:ULTURAL RESOURCES, DEPARTMENT OF/NC HISTORICAL COMMISSION 

Statement of Purpose 
Visiting Hours 
Admission Prices 
Visitation Rules 
Use of the Auditorium 
Research 
Audiovisual Aids 
Photographic Services 
Acquisition of Artifacts 
Operation 
DEPARTMENT OF INSURANCE 

Contents of Full Application 
Modification of Application 
Duration of Initial Certificate 
Application for Renewal of Certificate 
Renewal Certificate of Registration 
Financial Statements 

Determination of Financial Responsibility 
Financial Information Public Records 
Surety Bond Issued by Licensed Company 
Service Contracts w/Insurance Companies 
Adjusting Claims by Administrators 
Violations: Penalties 
Definitions 
Payment of Claims 
Bank Credit Card Facility 
Use of Credit Cards Prohibited 



7 


NCAC4S.0101 


Amend 


7 


NCAC4S,0102 


Amend 


7 


NCAC4S.0103 


Amend 


7 


NCAC4S,0104 


Amend 


7 


NCAC4S.0105 


Amend 


7 


NCAC4S.0106 


Amend 


7 


NCAC4S.0107 


Amend 


7 


NCAC4S.0108 


Amend 


7 


NCAC4S.0109 


Amend 


7 


NCAC4S.0110 


Amend 




NCAC6B.0201 


Repeal 




NCAC 6B .0202 


Repeal 




NCAC 6B .0203 


Repeal 




NCAC 6B .0204 


Repeal 




NCAC 68 .0205 


Repeal 




NCAC6B .0.^01 


Repeal 




NCAC 68 .0302 


Repeal 




NCAC 68 .0303 


Repeal 




NCAC 68 .0304 


Repeal 




NCAC 68 .0401 


Repeal 




NCAC 68 .0402 


Repeal 




NCAC 68 .0403 


Repeal 




NCAC 68 .0404 


Repeal 




NCAC 68 .0405 


Repeal 




NCAC 1 2 .0308 


Repeal 




NCAC 1 3 .0406 


Repeal 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1318 



RVLES REVIEW COMMISSION 



DENR/ENVIRONMENTAL MANAGEMENT COMMISSION 








Outstanding Resource Waters 


15 


NCAC 2B .0225 


Amend 


Neusc River Basin 


15 


NCAC 2B .0233 


Adopt 


Neuse River Basin 


15 


NCAC 2B .0241 


Adopt 


Neuse River Basin 


15 


NCAC 2B .0242 


Adopt 


Tar-Pamlico River Basin 


15 


NCAC 2B .0259 


Adopt 


Tar-Pamlico River Basin 


15 


NCAC 2B .0260 


Adopt 


Tar-Pamlico River Basin 


15 


NCAC2B .0261 


Adopt 


Little Tennessee River Basin 


15 


NCAC 2B .0303 


Amend 


French Broad River Basin 


15 


NCAC 2B .0304 


Amend 


Broad River Basin 


15 


NCAC 2B .0306 


Amend 


Catawba River Basin 


15 


NCAC 2B .0308 


Amend 


Lumber River Basin 


15 


NCAC 2B .0310 


Amend 


Pasquotank River Basin 


15 


NCAC 2B .0317 


Amend 


Control of Conical Incinerators 


15 


NCAC 2D .0523 


Repeal 


Definitions 


15 


NCAC 2D. 1202 


Amend 


Hazardous Waste Incinerators 


15 


NCAC 2D. 1203 


Amend 


Sewage Sludge and Sludge Incinerators 


15 


NCAC 2D. 1204 


Amend 


Municipal Waste Combustors 


15 


NCAC 2D. 1205 


Amend 


Hosp/Med/Infectious Waste Incinerators 


15 


NCAC 2D. 1206 


Amend 


Conical Incinerators 


15 


NCAC 2D. 1207 


Amend 


Other Incinerators 


15 


NCAC 2D. 1208 


Amend 


Compliance Schedules 


15 


NCAC 2D. 1209 


Repeal 


Activities Exempted-Permit Requirements 


15 


NCAC 2Q .0102 


Amend 


Activities Exempted-Permit Requirements 


15 


NCAC 2Q .0102 


Amend 


Definitions 


15 


NCAC 2Q .0103 


Amend 


Definitions 


15 


NCAC 2Q .0202 


Amend 


Permits Requiring Public Participation 


15 


NCAC 2Q .0306 


Amend 


Applicability 


15 


NCAC 2Q .0502 


Amend 


Definitions 


15 


NCAC 2Q .0503 


Amend 


Application 


15 


NCAC 2Q .0507 


Amend 


Permit Content 


15 


NCAC 2Q .0508 


Amend 


Exemptions 


15 


NCAC 2Q .0702 


Amend 


DENR/COASTAL RESOURCES COMMISSION 








Permit Fee 


15 


NCAC 7H. 11 03 


Amend 


Permit Fee 


15 


NCAC 7H. 1203 


Amend 


Permit Fee 


15 


NCAC 7H. 1303 


Amend 


Permit Fee 


15 


NCAC7H.1403 


Amend 


Application Fee 


15 


NCAC 7H. 1503 


Amend 


Permit Fee 


15 


NCAC 7H. 1603 


Amend 


Permit Fee 


15 


NCAC 7H. 1803 


Amend 


Permit Fee 


15 


NCAC 7H. 1903 


Amend 


Permit Fee 


15 


NCAC 7H .2003 


Amend 


Permit Fee 


15 


NCAC 7H .2103 


Amend 


Permit Fee 


15 


NCAC 7H .2203 


Amend 


Permit Fee 


15 


NCAC 7H .2303 


Amend 


Processing the Application 


15 


NCAC 7J .0204 


Amend 


Development Period Extension 


15 


NCAC 7J .0404 


Amend 


Permit Modification 


15 


NCAC 7J .0405 


Amend 


Permit Issuance and Transfer 


15 


NCAC 7J .0406 


Amend 


Eligible Applicants/Grant Sel Criteria 


15 


NCAC 7M .0307 


Amend 


Declaration of General Policy 


15 


NCAC 7M .0401 


Amend 


Definitions 


15 


NCAC 7M .0402 


Amend 


Policy Statements 


15 


NCAC 7M .0403 


Amend 



« 



SECRETARY OF STATE 



Notice Filin" Procedures for Offerings 



18 NCAC 6. 1212 



Amend 



1319 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



RVLES REVIEW COMMISSION 



Securities Registration and Filing Fees 1 8 NCAC 6 . 1 304 

Application to Exchange Securities 18 NCAC 6. 1502 
STATE BOARDS/DENTAL EXAMINERS, BOARD OF 

I Functions Which May Be Delegated 21 NCAC 16G .0101 

' Functions Which Shall not be Delegated 21 NCAC 16G .0102 

Procedures Prohibited 21 NCAC 16G .0103 

Dental Assistant II 21 NCAC 16H .0103 

Approved Education & Training Programs 21 NCAC 16H .0104 

Gen Permitted Functions-Dental Asst I 21 NCAC 16H .0201 

Specific Permitted Functions 21 NCAC 16H .0202 

Permitted Functions of Dental Assistant II 2 1 NCAC 16H .0203 

Gen Prohibited Functions of Dental Assts 21 NCAC 16H .0204 

Spec Prohibited Functions of Dental Assts 21 NCAC 16H .0205 

Credentials and Permit 21 NCAC 16Q .0201 

Equipment 21 NCAC 16Q .0202 

Sedation Credentials and Permit 21 NCAC 16Q .0301 

Equipment 21 NCAC 16Q .0302 

Definition 21 NCAC 16V .0101 

Definition 21 NCAC 16V .0102 
STATE BOARDS/NC BOARD OF PHYSICAL THERAPY EXAMINERS 



Fees 
N C STATE BOARD OF COMMUNITY COLLEGES 

Mission-Community College System 
Donated Property 
Acquisition of Equipment 
Noncertified Source Purchases 



21 NCAC 48F .0102 



23 NCAC 
23 NCAC 
23 NCAC 
23 NCAC 



2B .0104 
2C .0503 
2C .0504 
2C .0505 



Amend 
Amend 

Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 

Amend 

Amend 

Adopt 
Adopt 
Adopt 



' 



RULES REVIEW COMMISSION 

December 16, 1999 
MINUTES 



The Rules Review Commission met on December 16, 1999, in the Assembly Room of the Methodist Building, 1307 Glenwood 
Avenue, Raleigh, North Carolina. Commissioners in attendance were Chairman Teresa Smallwood, Jennie J. Hayman, Walter Futch, 
Paul Powell. Jim R. Funderburk, Palmer Sugg, John Arrowood, Laura Devan, David R. Twiddy, and George Robinson. 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster. 






The following people attended: 

Baruch A. Fellner 
Marge Howell 
Becky Brown 
Dedra Alston 
Tom West 
Leslie Bevacqua 
Butch Gunnells 
Joy Mayo 
Charles Jones 
Jessica Gill 
Bill Crowell 
James Rosich 
Hazel Chavis 
Bobby Lowe 
Vega George 



UPS 

LABOR 

LABOR 

DENR 

Poyner and Spruill 

N C Citizens for Business & Industry 

N C Soft Drink Association 

Womble Carlyle 

DENR/Coastal Management 

DENR/Coastal Management 

DENR/Coastal Management 

DENR/Coi.stal Management 

CAT 

DENR/DWQ 

DENR/DWQ 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1320 



RULES REVIEW COMMISSION 



Amy Simes 

Juanita Gaskill 

George Hurst 

Jerry Perkins 

Janice Fain 

Thomas Allen 

Ryke Longest 

Julie Campbell 

Frank Crawly 

Henry Jones 

Andy Ellen 

Fran Preston 

Lauren Steele 

Shirley BuUard 

Renee Myatt 

Kathleen Sherman Clancy 

Tom O'Conner 

Joe Wiggs 

Sabrina Jones 

Leanne Winner 

James Andrews 

Tim Childen 

Wayne Bumgardner 

Dave Masters 

White Watkins 

Perri Morgan 

Harry Payne 

Angela Waldorf 

Mike Lynch 

Bob Andrews 

Jessica Miles 

Bob Midgette 

James McGuire 

Sarah Meacham 

Leanne Winner 

Tim Devinney 

Mike Okun 

Robin Smith 

Ronald Raxter 

Jackie Stalnaker 

Jackie Sheppard 



DENR/DWQ 

DENR/Marine Fisheries Commission 

Attorney General 

DENR/DWS 

DHHS/DCD 

DENR/DAQ 

Attorney General 

NC Citizens for Business and Industry 

Attorney General 

Attorney 

N C Retail Merchants Association 

N C Retail Merchants Association 

Coca-Cola 

DHHS/Public Housing 

DHHS 

Attorney 

NCOSH 

Cape Fear Pilots Association 

News and Observer 

N C School Board Association 

AFL-CIO 

LABOR/OSHA 

Bernhardt Furniture 

Thomasville Furniture 

American Furniture 

National Federation Individual Business 

LABOR 

LABOR 

RDU Airport 

LABOR 

DENR/Public Water Supply 

DENR/Public Water Supply 

DENR/Public Water Supply 

Attorney General 

N C School Board Association 

Glaxo-Wellcome 

N C State AFL 

DENR 

Sanford Holshouser 

DHHS/Vocational Rehabilitation 

DHHS/DFS 



I 



APPROVAL OF MINUTES 



The meeting was called to order at 10:01 a.m. with Chairman Smallwood presiding. She asked for any discussion, comments, or 
corrections concerning the minutes of the November 17, 1999 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 



2 NCAC 52B .0207 and .0.W2: AGRICULTURE/Board of Agriculture - No action was necessary on these rules. 

2 NCAC 52E .0209: AGRICULTURE/Board of Agriculture - No action was necessary on this rule. 

4 NCAC 3L .0701: COMMERCE/Banking Commission - The agency requested that the rule be returned to them. The rule was 
subsequently returned. 



cic 



1321 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



RVLES REVIEW COMMISSION 



10 NCAC 3R .6234: DHHS/Di vision of Facility Services - The rewritten rule submitted by the agency was approved by the 
Commission. 

|l() NCAC 3S .1101, .1203, .1207, .1.301, .1601, .1802, and .2001: DHHS/Di vision of Facility Services - The rewritten rules 
'submitted by the agency were approved by the Commission with the exception of . 1 207 which was returned to the agency and its 
request. 

13 NCAC 7F .0601, .0602, .0603, .0604, .0605, and .0606: DEPARTMENT OF LABOR - The Commission objected to these rules 
due to laciv of statutory authority. Session Law 1999-395, Section 19.1(a) prohibits the use of funds appropriated to the Department 
of Labor for the 1999-2000 fiscal year or the 2000-2001 fiscal year to implement an ergonomics standard. The Commission found 
that the act of adopting these rules and taking other steps to put them into place involves using funds to implement the standard in 
violation of that provision. There is thus no authority to do so. Commissioner Hayman recused herself from these rules and 
Commissioners Smallwood and Arrowood voted not to object to the rules. 

15A NCAC 2D .0541, .1801, and .1802: DENR/Environmental Management Commission- The rewritten rules submitted by the 
agency were approved by the Commission. 

I5A NCAC 31 .01 17: DENR/Marine Fisheries Commission - The repeal was approved by the Commission. 

15A NCAC I6A .1 104 - DHHS/Commission for Health Services - At the request of the agency no action was taken on this rule until 
the January meeting. 

21 NCAC I .0101 : N C Acupuncture Licensing Board - No response was received from the agency. 

LOG OF FILINGS 

Chairman Smallwood presided over the review of the log and all rules were approved with the following exceptions: 

14 NCAC 15 .0120: COMMERCE/Cape Fear River Navigation & Pilotage Commission - The Commission objected to this rule due 
10 lack of statutory authority. The added sentence is not consistent withG.S. 76A-5(c) which requires the Commission to renew each 
license if the holder has complied with the statutes and rules. This applies to limited licenses as well as full licenses. 
4 NCAC 15 .0121: COMMERCE/Cape Fear River Navigation & Pilotage Commission - The Commission objected to this rule due 
to lack of statutory authority and ambiguity. In (a)( 1 ), it is not clear what constitutes "satisfactory" evidence of graduation. It is also 
not clear what is meant by "accredited" college or university. In (a)(2), it is not clear what is meant by "good moral character." There 
is the same issue in (g)(3). In (a)(3), (4), (5), (6), and (8) also, it is not clear what constitutes "satisfactory" evidence. In (a)(5), it 
is not clear what constitutes "good natural hearing." In (a)(8), there is no authority to require evidence of physical and mental 
qualifications that have not been adopted as rules. There is no authority for the provision in (b) requiring a majority vote of the 
association for an apprentice to be licensed. TTiere is no authority for the Commission to set requirements outside rulemaking as (c)(8) 
implies. In addition, the requirements are to me set by the Commission, not the association. There is no authority for the provision 
in (c) requiring the recommendation by the association for the issuance of a limited license or additional limited licenses. There is 
also not authority for the time limitation. In (f), it is not clear what is meant by "satisfactory" progress. Tliere is no authority for the 
provision in (g)(4) requiring the recommendation of the association to be appointed as a pilot. In (g)(6), it is not clear what constitutes 
"immediate family." 

10 NCAC 3R .0212: DHHS/Division of Facility Services - The Commission objected to this rule due to lack of statutory authority. 

There is no authority for the provision in (g) setting additional limitations on contested case proceedings beyond those found in the 

Administrative Procedure Act, other statutes, or rules adopted by the Office of Administrative Hearings to implement the APA. 

10 NCAC 3U .0102: DHHS/Child Care Commission - The Commission objected to this rule due to lack of statutory authority. There 

is no authority for the agency to establish occupational qualifications for basic school age care trainers as the rule does in (5 ) and (6). 

NCAC 3U .2510: DHHS/Child Care Commission - The Commission objected to this rule due to ambiguity. In (k)(l), it is not 
clear what other life saving certificate issuing entities will be approved by the division. 

15A NCAC IJ .0402: DENR - The Commission objected to this rule due to ambiguity. In (b)(3), it is not clear what constitutes 
'significantly" contributes to the implementation of the plan. 



14:14 NORTH CAROLINA REGISTER Jamiary 14, 2000 1322 



RVLES REVIEW COMMISSION 



1 5A NCAC 1 J .0504: DENR - The Commission objected to tiiis rule due to ambiguity. In ( I ) and (2), it is not clear what constitutes 
an "acceptable" sewer use ordinance. The final sentence in the rule is unclear. Either an applicant is entitled to the points or he is 
not. There is no provision for partial value plus both items are either done or not done. The only question is whether to assign points, 
not how many to assign. ■ 

15A NCAC IJ .0604: DENR - The Commission objected to this rule due to ambiguity. In (l)and (2), it is not clear what constitutes 
an "acceptable" sewer use ordinance. The final sentence in the rule is unclear. Either an applicant is entitled to the points or he is 
not. There is no provision for partial value plus both items are either done or not done. The only question is whether to assign points, 
not how many to assign. 

15A NCAC IJ .0701 : DENR - The Commission objected to this rule due to ambiguity. In (2)(a), (b), (c), (d), and (e), each item 
begins by saying that a maximum number of points shall be awarded. Then items are listed under them which either are, or are not, 
met. Logically, the project would get all points or none, which is also what an earlier rule states will happen. If a fewer number of 
points can be awarded, it is not clear what standards the agency will use in awarding them. 

I5A NCAC IJ .090.^: DENR - The Commission objected to this rule due to ambiguity. In ( 1 ), it is not clear what standards the 
receiving agency is to use to approve loan commitment decreases. In (2), it is not clear what standards the receiving agency is to use 
to approve increases greater than 10% of the loan commitment. 

15A NCAC 1L.0503: DENR - The Commission objected to this rule due to ambiguity. In (1 )and (2), it is not clear what constitutes 
"acceptable" sewer use ordinance. The final sentence in the rule is also unclear. Either an applicant is entitled to the points or he is 
not. There is no provision for partial value plus both items are either done or not done. The only question is whether to assign points, 
not how many to assign. 

15A NCAC 1 L .0604: DENR - The Commission objected to this rule due to ambiguity. In ( 1 ) and (2), it is not clear what constitutes 
"acceptable" sewer use ordinance. The final sentence in the rule is also unclear. Either an applicant is entitled to the points or he is 
not. There is no provision for partial value plus both items are either done or not done. The only question is whether to assign points, 
not how many to assign. 



15A NCAC IL .0701: DENR - The Commission objected to this rule due to ambiguity. In (2)(a), (b), (c), (d), and (e), each item 
begins by saying that a maximum number of points shall be awarded. Then items are listed under them which either are, or are not, 
met. Logically, the project would get all points or none, which is also what an earlier rule states will happen. If a fewer number of 
points can be awarded, it is not clear what standards the agency will use in awarding them. 

15A NCAC IL .1003: DENR - The Commission objected to this rule due to ambiguity. In (1), it is not clear what standards the 
receiving agency is to use to approve loan commitment decreases. In (3), it is not clear what standards the receiving agency is to use 
to approve increases greater than 1 0'7c of the loan commitment. 

15A NCAC 31 .0106: DENR/Marine Fisheries Commission - The Commission objected to this rule due to ambiguity. In (a), it is 
not clear what is meant by "significant" adverse effect. 

I5A NCAC 30 .0101: DENR/Marine Fisheries Commission - The Commission objected to this rule due to ambiguity. In the added 
portion of (a)(5), it is not clear what is meant by "incorporation of an individual fishing vessel." While a corporation may own a 
vessel, the vessel itself cannot be the corporation. 

15A NCAC 30 .0404: DENR/Marine Fisheries Commission - The Commission objected to this rule due to ambiguity. IN ( 1 )(a), 
(b), and (f), it is not clear what is meant by "significant" involvement. 

15A NCAC 7H .0209: DENR/Coastal Resources Commission - The Commission objected to this rule due to ambiguity. In (d), it 
is not clear what the sentence "Every effort shall be made to conserve these shorelines and their vital components" requires or from 
whom. In (d)(4)(B), it is not clear what is meant by "adequate" erosion control devices or structures. In (d)(5), it is not clear what 
is meant by "significant" adverse impact. In (d)(6), it is not clear what is meant by "significantly" interfere. In (d)(7), it is not clear 
what is meant by "major" public facility or "extraordinary" public expenditures. In (d)(8), it is not clear what is meant by "major 
damage or "valuable documented historic architectural or archeological resources." In (g)(2)(B), it is not clear what is meant by 
"substantial" financial resources. 



i) 



I 



1323 NORTH CAROLINA REGISTER January 14, 2000 14:14 



RULES REVIEW COMMISSION 



COMMISSION PROCEDURES AND OTHER MATTERS 

Mr. DeLuca informed the Commission that the Auditor's Office had notified us that we were being audited again this year. 
Ipommissioner Fuleh asked if the disaster reUef reserve in the budget was a new item. He was informed that it was and that our office 
would be appealing the amount to be taken from our budget. 



The next meeting will be on Thursday, January 20, 2000. 

TTie meeting adjourned at 1 :20 p.m. 

Respectfully submitted, 
Sandy Webster 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1324 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. Copies of the 
decisions listed in the index and lun published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings, (919) 733-2698. Also, the Contested Case Decisions are available on the Internet at the following 
address: http://www.state.nc.us/OAH/hearings/decision/caseindex.htni. 



♦ 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LAW JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens Lassiter 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Beryl E. Wade 



AGENCY 

ADMINISTRATION 

Bntthaven. Inc. v. Department of .Administration 

and 
Pnva-Trends. Inc. 
Laidlaw Transit Svcs. Inc. v. Katie G. Dorsett, Sec'y/Dept/ Administration 99 DOA 0102 

OFFICE OF ADMINISTRATIVE HEARINGS 

Ted Murrell, Zam. Inc. v. Office of Administrative Hearings 
Samuel Lee Ferauson v. Office of Administrative Hearings 



AGRICULTURE 

Archie McLean v. Department of Agnculture 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission v. Keyland. Inc., T/A Cloud 9 
.Alcoholic Beverage Control Commission v. Food Lion, Inc., Store #1.^51 
Alcoholic Beverage Control Commission v. Stop I, Inc, T/A Stop 1 Grocery 
Alcoholic Beverage Control Commission v. George Steven Everett 

t/a Casino Snooks Place 
Alcoholic Beverage Control Commission v. Beech Mountain Resort. Inc. 
Alcoholic Bev. Control Comm.v. Partnership T/.A Mermaid Rest. & Lge. 
Alcoholic Beverage Control Commission v. Jaeson Nyung Kim 
Alcoholic Beverage Control Commission v. Lillian Sarah Clary 
Alcoholic Beverage Control Commission v. Circle K Stores, Inc.. T/A 

Circle K #8.^57 
Alcoholic Beverage Control Commission v. Vnus Enterprices. LLC, 

t/a Rendez Vous Cluh & City of Charlotte 
Alcoholic Beverage Control Commission v. Mohammad Salim Pirani 
Alcoholic Beverage Control Commission v. Creek Lounge, Inc. l/a 

Creek Lounge 

Delores Ann Holley v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Partnership T/,A 

Corrothers Community Center/Pnvate Club 

CRIME CONTROL AND PUBLIC SAFETY 

Ray .Anthony Breeding v. Cnme Control & Public Safety 
John Ray Webb v. Crime Victims Compensation Commission 



CASE 




NUMBER 


AL,I 


98 DOA 08 11 


Chess 


99 DOA 0102 


Momson 


99 OAH 0665 


Chess 


99OAH0718 


Chess 


98 DAG 1770 


Reilly 


98 ABC 1099 


Overby 


98 ABC 1270 


Gray 


98 ABC 1.^.^7 


Phipps 


98 ABC 1546 


Reilly 


99 ABC 0287 


Reilly 


99 ABC 0.^67 


Chess 


99 ABC 0407 


Momson 


99 .ABC 06 15 


Phipps 


99 ABC 0656 


Gray 


99 ABC 0684 


Morgan 


99 ABC 0780 


Momson 


99 ABC 0820 


Morgan 


99 ABC 0876 


Gray 


99 ABC 0986 


Lassiter 



9i CPS 0695 
95CPS 1353 



Gray 
Gray 



DATE OF 
DECISION 



06/10/99 



06/11/99 



07/14/99 
07/16/99 



07/12/99 



01/17/99 
03/3 1/99 
09/29/99 
10/19/99 

08/1 1/99 
09/17/99 
07/09/99 
09/01/99 

11/29/99 
10/15/99 

09/21/99 
10/13/99 

08/10/99 
1 1/03/99 



09/L3/99 
09/13/99 



PUBLISHED DECISION 
REGISTER CITATION 



14:02 NCR 115 



14:04 NCR .349 



14:04 NCR 347 



f 



I- 



1325 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



CONTESTED CASE DECISIONS 



AGENCY 

Sarene Franklin Holloway v. Crime Victims Compensation Comm. 
■Paul Richard Mull \ , Cnme Victims Compensation Commission 
FCoradene Mayhand v. Cnme Victims Compensation Commission 
Edna Carr v. Crime Victims Compensation Commission 
Enc Charles Williams v. Crime Control & Public Safety. Div. of 

State Highway Patrol 
Bobby Mills v. Cnme Victims Compensation Commission 
William Samuel McCraw v. Clime Victims Compensation Commission 
Anson D. Looney v. Cnme Victims Compensation Commission 
Elvin Williams, Jr. v. Crime Victims Compensation Commission 
Michael .Anthony Powell v. Cnme Victims Compensation Commission 
Mary Elizabeth Peoples Hogan v. Crime Victims Compensation Comm. 
Louise Dowd v. Cnme Victims Compensation Commission 
Lemuel Ray Jenkins v. Cnme Victims Compensation Commission 
Annabell B. McCormick v. Cnme Victims Compensation Commission 
Chnstopher Beasley v. Cnme Victims Compensation Commission 

ENVIRONMENT AND NATURAL RESOURCES 

R.J. Reynolds Tobacco Co. v. Dept. of Environment & Natural Resources 

T. Eamell Shingleton v. Environment and Natural Resources 

T. Eamell Shingleton v. Environment and Natural Resources 

Town of Maysville v. Environment and Natural Resources 

Willie Setzer v. Depariment of Environment & Natural Resources 

Charies H. Jordan v. Brunswick County Health Department 

Jerry Eranks and John Schifano. et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
Jerry Eranks and John Schifano. et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
James P. and Irene P. Wilson v. Cleveland Co. Health & Sanitary 
Deep River Citizens' Coalition, Amencan Canoe Assoc, Inc., and Deep 

River Coalition, Inc. v. Department of Env. & Natural Resources 
Deep River Citizens' Coalition, Amencan Canoe ."Kssoc. Inc., and Deep 

r River Coalition, Inc. v. City of Green.sboro. Piedmont Tnad Regional 
1 Water .Authonty 
Mazzella's Restaurant, Peter D. Mazzella v. Carteret County Env. Health 
Roadway Express v. Department of Environment and Natural Resources 
John W. Venable v. Department of Environment and Natural Resources 
Shell Island Homeowners' Association v. DENR. Div. of Env. Health 
Gail S. Barfield v. Department of Environment and Natural Resources 
Richard E. Day v. Division of Coastal Management 
Ronald L. Walker, Sr.. v. Environmental Health Ala County 
Clifford Myers v. Montgomery County Health Department 
Deloris B. Wooten v. Pitt County Dept. of Environmental Health 



Division of Air Quality 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League, Inc. v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving. Inc. and Carolina ."Ksphalt Pavement .'Association 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League. Inc. v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving, Inc. and Carolina Asphalt Pavement Association 

Terrance W. Bache, Pres., Terhane Group, Inc. \ . DENR. Di\/.-\ir Quality 

Eoothills Action Comm. Eor The Environment and The Blue Ridge 
Environmental Defense League, Inc. v. DENR. Div. of Air Quality & 
D&S Asphalt Matenals and Carolina Asphalt Pavement Assoc. 

XVIII .Airborne Corps & Fort Bragg. Dept. of the .Army. USA v. 
Environment and Natural Resources, Div. of Air Quality 

J.D. Owen v. Environment and Natural Resources. Div. of Air Quality 

Environmental Management 

.Allen Raynor \. Environmental Management Commission 

Division of Land Resources 

Buel B. Barker. Jr. and Hubbard Realty of Winston-Salem, a NC Corp.. 

jointly and severally v. DENR, Div. of Land Resources 
r.B. Powell, Inc. v. DENR, Division of Land Resources 
Donald G. Smith v. DENR, Division of Land Resources 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AL.I 


DECISION 


REGISTER CITATION 


97CPS 1172 


Chess 


10/12/99 




98 CPS 0.^42 


Chess 


07/26/99 




98 CPS 0,^98 


Chess 


10/09/99 




98 CPS 0788 


Chess 


10/28/99 




98 CPS 1279 


Chess 


11/01/99 




98 CPS 1412 


Wade 


08/06/99 




98 CPS 1626 


Morrison 


06/09/99 




99 CPS 0096 


Momson 


05/25/99 




99 CPS 01 18 


Owens 


08/03/99 




99 CPS 0426 


Reilly 


08/03/99 




99 CPS O.';04 


Reilly 


07/29/99 




99 CPS o.*; 1 9 


Momson 


12/07/99 




99 CPS 0521 


Gray 


09/08/99 




99 CPS 0564 


Phipps 


08/04/99 




99 CPS 0843 


Chess 


1 1/2.3/99 




98EHR LM5 


Wade 


06/04/99 


14:02 NCR 110 


98EHR 1600 


Reilly 


10/08/99 


14:11 NCR 926 


98EHR 1601 


Reilly 


10/08/99 




99 EHR 0069 


Owens 


09/27/99 




99EHR0I66 


Chess 


06/28/99 




99 EHR 0201 


Momson 


06/28/99 




99 EHR 0344' 


Phipps 


09/28/99 




99 EHR 0380" 


Phipps 


09/28/99 




99 EHR 0506 


Lassiter 


10/07/99 




99 EHR 0.560" 


Reilly 


11/01/99 




99 EHR 0613" 


Reilly 


11/01/99 




99 EHR 0692 


Reilly 


08/19/99 




99 EHR 0745 


Momson 


07/27/99 




99 EHR 0773 


Wade 


10/13/99 




99 EHR 0814 


Owens 


08/18/99 




99 EHR 0840 


Momson 


11/19/99 




99 EHR 0921 


Wade 


1 1/02/99 




99 EHR 1076 


Momson 


10/18/99 




99 EHR 1106 


Mann 


1 1/03/99 




99 EHR 1131 


Wade 


11/19/99 




98 EHR 1735 


Gray 


09/30/99 


14: 10 NCR 900 


98 EHR 1735'- 


Gray 


12/06/99 




98 EHR 1790 


Marm 


06/23/99 




99 EHR 0157'- 


Gray 


12/06/99 




99 EHR 0283 


Wade 


08/ 1 1/99 




99 EHR 0642 


Mann 


08/10/99 




99 EHR 0127 


Gray 


07/27/99 




98 EHR 1457 


Momson 


06/09/99 




99 EHR 0632 


Wade 


10/04/99 




99 EHR 0799 


Momson 


10/29/99 





livision of Marine Fisheries 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1326 



CONTESTED CASE DECISIONS 



AGENCY 

Alton Chadwick v. Division of Mamie Fisheries 

Division of Water Quality 

York Oil Company v. DENR, Division of Water Quality 

J. Todd Yates and Teresa B. Yates v. DENR. Div. of Water Quality 

N.G. Purvis Farms. Inc. v. DENR, Division of Water Quality 

.So/7 and Water Conservation Commission 

Neuse River Foundation. Neuse Riverkeeper. and Alliance For A 
Responsible Swine industry. Inc. v, NC Soil & Water 
ConservationConinussion 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


99 EHR O.S.S.^ 


Reilly 


08/19/99 




97 EHR 1026 


Phipps 


07/26/99 


14:04 NCR 343 


98 EHR I4.'56 


Wade 


06/22/99 




99 EHR 0696 


Chess 


08/27/99 




99 EHR 1660 


Momson 


12/10/99 


14:14 NCR 1334 



♦ 



BOARD OF GEOLOGISTS 

Andrew M. Raring, PhD v. Board for the Licensing of Geologists 

HEALTH AND HUNL\N SERVICES 

Eardley "JR" Stephens v. St. Bd. of Nurse's Aides and Practitioners 

Ernest Clyde Absher and Dianna B. Absher v. Health & Human Resources 

Andrew Gainey v. Office of the Chief Medical Examiner 

J. P. Lynch v. Department of Health & Human Services 

Paul Walker, Thomas Walker & Mary Walker v. Mecklenburg Area 

Mental Health 
New Hope Living Centers. Eric D. Lewis v. Health & Human Services 
Frank McKoy v. Department of Health & Human Services 
Joan Mane McDaniel v. Depariinent of Health & Human Services 
Lonnie Herring v. Department of Health & Human Services 
Robert H. Riley v. Office of the Governor. Office of Citizen Services 
Betty C. Patterson v. Department of Health & Human Services 
Rayiier Super Mkt.. J,K. Rayner. Jr. v. Department of Health and 

Human Services 
Monica Denise Dayson v. Department of Health & Human Services 

Division of Child Development 

Shaw Speaks Child Dev. Ctr. v. Health & Human Svcs.. Child Dev. 
Lachelle L. Parsons v. Health & Human Svcs, Div. of Child Dev. 
In The Beginning. Inc. v. Health & Human Svcs., Div. of Child Dev. 
Dulatown Outreach Center, Inc. v. Health & Human Svcs., Child Dev. 
Michele Denoff v. Health & Human Services, Div. of Child Dev. 
MLCM. Inc.. Mary C. McGovern v. DHHS, Div. of Child Dev. 
Small World Daycare 11. Trena S. McDaniel v. Health & Human Svcs.. 
Div. of Child Dev. 



99 BOG 01. "iO 


Mann 


06/16/99 




98DHR01.'5,'5 


Phipps 


08/2.V99 




98DHR 1622 


Reilly 


06/17/99 




98DHR 1761 


Owens 


O.V 12/99 


14:01 NCR 69 


99DHR0I11 


Reilly 


0.'i/25/99 




99DHROI.'55 


Momson 


08/19/99 




99DHR0I70 


Owens 


05/2.V99 




99DHR0226 


Wade 


07/06/99 




99 DHR 030.^ 


Reilly 


08/05/99 




99 DHR 03-';0 


Reilly 


06/03/99 




99 DHR 03.S6 


Wade 


07/21/99 




99 DHR n9.'54 


Reilly 


11/05/99 




99 DHR 0961 


Momson 


11/1,5/99 





99 DHR 1041 



Reilly 



09/29/99 



99 DHR 0042 


Gray 


07/22/99 


99 DHR 0445 


Reilly 


07/19/99 


99 DHR 0,575 


Mann 


07/19/99 


99 DHR 0688 


Owens 


07/21/99 


99 DHR 0695 


Owens 


08/05/99 


99 DHR 1032 


Wade 


11/19/99 


99 DHR 1038 


Lassiter 


10/06/99 



« 



Division of Facility Services 

Kelly M. Poole v. Health & Human Services, Div. of Facility Services 
Norma Faye Lewis v. Health & Human Svcs., Div. of Facility Services 
Delia C. Jones v. Health & Human Services, Div. of Facility Services 
Heather Alane Scott v. Health & Human Svcs. Div of Facility Services 
ElTie Ruth Smith v. Health & Human Svcs.. Div. of Facility Services 
Vivienne Gelona Marshall v. DHHS, Div. of Facility Services 
Sarah L. Mathis v. DHHS, Div. of Facility Services 
Doris Laviner Moser v. Health & Human Services, Div. of Facility Svcs. 
Norma Faye Lewis v. Health & Human Svcs.. Div. of Facility Services 
Carolyn Grant v. Health & Human Services, Div. of Facility Services 
Manon Moser Thompson v. Health & Human Svcs., Facility Services 
Rose Mane Hadley v. Health & Human Svcs., Div. of Facility Services 
Sarah Frances Alford v. Health & Human Svcs.. Div. of Facility Svcs. 
Alvin L. Phynon Jr. v. Health & Human Svcs.. Dept. of Facility 
Cabarrus Memorial Hospital d/b/a Northeast Medical Center 

V. DHHS. Div. of Facility Services. Certificate of Need Section & 

Cabarrus Diagnostic Imaging, Inc. 

Barbara Rhue v, D.F.S. 99 DHR 0401*' 

Barbara Rhue v. D.F.S. 99 DHR 0414*' 

Michelle Johnson v. DHHS. Division of Facility Services 
Esther Nieves v. Health & Human Services. Div. of Facility Services 
Apnl De'Shelle Turner v. DHHS. Div. of Social Service. 



97 DHR 0629 


Chess 


06/14/99 


98 DHR 1274'' 


Phipps 


07/02/99 


98 DHR 1680 


Gray 


06/09/99 


98 DHR 1671 


Gray 


10/08/99 


98 DHR 1774 


Chess 


07/14/99 


98 DHR 1786 


Phipps 


09/02/99 


99 DHR (.1032 


Momson 


09/24/99 


99 DHR 0074 


Wade 


08/06/99 


99 DHR 0144*' 


Phipps 


07/02/99 


99 DHR 0145 


Mann 


06/1 1/99 


99 DHR 0216 


Gray 


08/1-3/99 


99 DHR 0218 


Wade 


08/06/99 


99 DHR 0220 


Phipps 


06/08/99 


99 DHR 02.30 


Mann 


07/07/99 


99 DHR 0392 


Gray 


11/18/99 


Wade 


07/30/99 




Wade 


07/30/99 




99 DHR 0,546 


Gray 


10/12/99 


99 DHR 0766 


Phipps 


07/21/99 


99 DHR 0927 


Gray 


10/21/99 



Consolidated Cases. 



1327 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



CONTESTED CASE DECISIONS 



CASE 




NUMBER 


ALJ 


99 DHR 0942 


Mann 


99 DHR 0552 


Mann 


99 DHR 0762 


Owens 



AGENCY 

Program Integrity Branch 
Ifihirley Ann Beck v. Division of Facility Services 

Division oj Medical Assistance 

Inienm HealthCare - Moms Group, Inc.. Lisa B. Moms, RN, BSN ' 

DHHS. Division of Medical Assistance 
Companion Health Care. Inc. v. Div, of Medical Assistance, DHR 



Division of Menial Health, Developmental Disabilities and Substance Abuse Services 

S.S. by her parents and next friends. D.S, & A.S. v. DMH/DD/SAS 99 DHR 0538 



Division of Social Sen'ices 

Robert H. Riley v. Iredell Coumy DSS 

Robert H. Riley v. Health & Human Svcs.. Div. of Social Services 

Joanna Pnce v. Caldwell County Social Services 

Veronica Owens v. Dept. of Social Services Union County 

Chilli Support Enforcement Section 
Grady J. Gnffith v. Department of Human Resources 
Lindy Teachout v. Department of Health & Human Services 
Thomas .Ashley Stewart II v. Department of Health & Human Services 
June V. Pettus v. Department of Human Resources 
Floyd W. Hubbard v. Department of Human Resources 
Richard .Arnold Collins v. Jones County DSS 
David S. Blackwelder v. Department of Human Resources 
June V. Pettus v. Department of Human Resources 
Grady J. Griffith v. Department of Human Resources 
John T. Raynor v. Department of Human Resources 
Kenneth Wayne Adair v. Department of Human Resources 
Randy Snead v. Department of Human Resources 
Shawn E. Williams v. Department of Human Resources 
Hun G. Stokes v. Department of Health & Human Services 
Ronald E. Sanders v. Department of Human Resources 

le D. Davis \ . Department of Human Resources 
'G.S. Hall V. Department of Health & Human Services 
Charles Stewart v. Department of Human Resources 
Kenneth A. McCrorie v. Department of Human Resources 
Daniel R. Klock v. Department of Human Resources 
David M. VanDyke v. Department of Human Resources 
Jerome Maddox v. Department of Health & Human Services 
Sam Anderson v. Department of Human Resources 
Donald Edward Law II v. Department of Human Resources 
Sechia Lee Corhett v. Department of Human Resources 
Robert T. Ausband v. Department of Human Resources 
Shawn E. Williams v. Department of Human Resources 
Antonio Melendez v. Department of Health & Human Services 
William W. Heck v. Department oi Human Resources 
Rickey Lightner v. Department of Human Resources 
Robert M. Chandler Jr. v. Department of Healtli & Human Services 
Jermaine L. Covington v. Department of Health & Human Services 
Mitchell Moses, Jr v. Department of Health & Human Services 
Grady L. Chosevvood v. Department of Health & Human Services 
Fulton Allen Tillman v. Department of Health & Human Services 
Nathaniel Alston v. Department of Health & Human Services 
Bret Burtrum v. Department of Health & Human Services 
Cednc .A. Hurst v. Department of Human Resources 
Dane Wesley Ware v. Department of Health & Human Services 
Paul H. Padrick v. Department of Health & Human Services 
Oscar William Willoughby Sr v. Dept. of Health & Human Services 
Kelvin E. Townsend v. Department of Health & Human Services 
Billy J. Young v. Department of Health & Human Services 
Rodney Eugene Caldwell v. Department of Health & Human Services 
lAdelheide J. Cooper v. Department of Health & Human Services 
everly K. Thompson v. Department of Health & Human Services 
ichael L. Timmer v. Department of Health & Human Services 
llizabeth F. West v. Department of Health & Human Services 
roy Gibson v. Department of Health & Human Services 
Roy D. Washington v. Department of Health & Human Services 
Hverett .A Mitchell v. Department of Health & Human Services 



Gray 



DATE OF 
DECISION 



09/24/99 

09/01/99 
07/29/99 

08/02/99 



PUBLISHED DECISION 
REGISTER CITATION 



99 DHR 0.354 


Wade 


07/21/99 


99 DHR 0.355 


Wade 


07/21/99 


99 DHR 0520 


Momson 


06/10/99 


99 MIS 0677 


Mann 


08/17/99 


97CRA 1570 


Mann 


10/26/99 


98CRA0727 


Reilly 


06/24/99 


99 CRA 0628 


Reilly 


06/14/99 


96CSE 1721*' 


Mann 


09/17/99 


96CSE 1725 


Reilly 


09/02/99 


96CSE 1810 


Reilly 


06/28/99 


97CSE0416 


Momson 


08/24/99 


97CSE0867*" 


Mann 


09/17/99 


97CSE 1569 


Mann 


10/26/99 


98 CSE 00.54 


Gray 


10/21/99 


98 CSE 0229 


Momson 


06/30/99 


98 CSE 0544 


Gray 


10/21/99 


98 CSE 0845 


Phipps 


09/21/99 


98 CSE 0898 


Gray 


07/23/99 


98 CSE 1182 


Mann 


10/26/99 


98 CSE 1387 


Mann 


09/17/99 


98 CSE 1392 


Reilly 


06/24/99 


98 CSE 1419 


Mann 


09/17/99 


98 CSE 1435 


Gray 


08/04/99 


98 CSE 1440 


Momson 


10/20/99 


98 CSE 1.549 


Mann 


09/17/99 


98 CSE 1562 


Mann 


09/17/99 


98 CSE 1585 


Mann 


09/17/99 


98 CSE 1586 


Morrison 


06/25/99 


98 CSE 1588 


Phipps 


09/21/99 


98 CSE 1612 


Mann 


11/02/99 


98 CSE 1613 


Phipps 


09/21/99 


98 CSE 1635 


Chess 


09/30/99 


98 CSE 16.38 


Mann 


09/17/99 


98 CSE 1717 


Reilly 


1 1/02/99 


98 CSE 1789 


Phipps 


05/27/99 


99 CSE 0209 


Lassiter 


11/18/99 


99 CSE 02 17 


Wade 


11/30/99 


99 CSE 0.301 


Mann 


07/01/99 


99 CSE 03 1 1 


Reilly 


06/30/99 


99 CSE 03 17 


Mann 


07/01/99 


99 CSE 03 18 


Wade 


07/14/99 


99 CSE 0330 


Chess 


08/10/99 


99 CSE 0359 


Gray 


06/28/99 


99 CSE 0370 


Mann 


11/02/99 


99 CSE 0371 


Morrison 


06/28/99 


99 CSE 0373 


Phipps 


07/12/99 


99 CSE 0374 


Reilly 


06/14/99 


99 CSE 0427 


Lassiter 


10/20/99 


99 CSE 0428 


Phipps 


07/19/99 


99 CSE 0435 


Reilly 


06/14/99 


99 CSE 0437 


Wade 


06/08/99 


99 CSE 0451 


Mortison 


05/25/99 


99 CSE 0462 


Owens 


07/19/99 


99 CSE 0481 


Reilly 


06/25/99 


99 CSE 0483 


Chess 


10/05/99 



14:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1328 



CONTESTED CASE DECISIONS 



AGENCY 

Corey Antoine Johnson v. Department of Health & Human Services 
Holland E. Harold v. Department of Health & Human Services 
Larry Lowell Dixon v. Department of Health & Human Services 
Calvin D. Alston v. Department of Health & Human Services 
Marquel Simmons v. Department of Health & Human Services 
Anthony Vincente Battista v. Department of Health & Human Services 
Gerald Scott Saucier v. Department of Health & Human Services 
Lawrence Gordon Soles v. Department of Health & Human Services 
Mohamed Moustafa v. Department of Health & Human Services 
Dainion C. Graham v. Department of Health & Human Services 
Vicky L. Day v. Department of Health & Human Services 
Matthew Conklin v. Department of Health & Human Services 
Charlie James White v. Department of Health & Human Services 
Bennie Lamar Knighten v. Department of Health & Human Services 
Lane Bolton v. Department of Health & Human Services 
Randy Lewis Bryant v. Department of Health & Human Services 
Earl C. Jones, Sr. v. Department of Health & Human Services 
Joseph F. Donaldson, III v. Department of Health & Human Services 
Naion V. Pnde v. Department of Health & Human Services 
Claude W. Jordan v. Department of Health & Human Services 
Henry Roosevelt Mercer v. Department of Health & Human Services 
Bobby Gene Owens v. Department of Health & Human Services 
Thomas L. Vaughn v. Department of Health & Human Services 
Robert F. Skipper v. Department of Health & Human Services 
Gerald W. Lawson v. Department of Health & Human Services 
David S. Yusko v. Department of Health & Human Services 
Debbie Galmon Moore v. Department of Health & Human Services 
Kenneth Dana Kirk v. Department of Health & Human Services 
Gill T, Smith V. Department of Health & Human Services 
Clarence Earl Burden v. Department of Health & Human Services 
Gary Willis v. Department of Health & Human Services 
Phillip Drye v. Department of Health & Human Services 
William Kizzie v. Department of Health & Human Services 
June S. Shepherd v. Department of Health & Human Services 
Michael Bryant v. Department of Health & Human Services 
Sharon Tucker v. Department of Health & Human Services 
Eddie Southards v. Department of Health & Human Services 
John Ciccarelli v. Department of Health & Human Services 
David Black v. Department of Health & Human Services 
David Black v. Department of Health & Human Services 
Michael J. Artis V. Department of Health & Human Services 
Munel Thomas v. DHR, Div of Social Services 
Kathryn P, Fagan v. Department of Health & Human Services 
Tresha W- Robinson v. Department of Health & Human Services 
Robert Dwayne Kennedy v. Department of Health & Human Services 
Deborah Seegars v. Department of Health & Human Services 
Lillian Anne Darroch v. Department of Health & Human Services 
Evelyn C. Pratt v. Department of Health & Human Services 
Jacqueline D. Caldwell v. Department of Health & Human Services 



CASE 




DATE OF 


NUMBER 


AL.I 


DECISION 


99 CSE 0486 


Gray 


09/13/99 


99 CSE 0509 


Mann 


11/02/99 


99 CSE 05 18 


Momson 


08/24/99 


99 CSE 0539 


Owens 


08/10/99 


99 CSE 0547 


Wade 


08/06/99 


99 CSE 055 1 


Chess 


08/31/99 


99 CSE 0576 


Mann 


06/09/99 


99 CSE 0581 


Momson 


06/09/99 


99 CSE 0582 


Owens 


08/05/99 


99 CSE 0635 


Wade 


12/06/99 


99 CSE 0679 


Gray 


09/27/99 


99 CSE 0689 


Mann 


09/17/99 


99 CSE 0690 


Momson 


07/20/99 


99 CSE 0702 


Owens 


09/20/99 


99 CSE 0735 


Phipps 


08/06/99 


99 CSE 0737 


ReiUy 


09/20/99 


99 CSE 0801 


Gray 


08/10/99 


99 CSE 0802 


Mann 


11/02/99 


99 CSE 0825 


Phipps 


08/20/99 


99 CSE 0831 


Reilly 


10/11/99 


99 CSE 0841 


Wade 


10/20/99 


99 CSE 0877 


Gray 


10/11/99 


99 CSE 0883 


Mann 


1 1/08/99 


99 CSE 0899 


Momson 


10/20/99 


99 CSE 0909 


Lassiter 


11/16/99 


99 CSE 0953 


Chess 


12/13/99 


99 CSE 0957 


Gray 


10/18/99 


99 CSE 0972 


Mann 


10/26/99 


99 CSE 1015 


Wade 


11/30/99 


99 CSE 1037 


Chess 


11/18/99 


99 CSE 1040 


Gray 


12/02/99 


99 CSE 1043 


Mann 


12/14/99 


99 CSE 1049 


Momson 


12/01/99 


99 CSE 1074 


Lassiter 


12/09/99 


99 CSE 1235 


Gray 


11/17/99 


99 CSE 1283 


Reilly 


11/30/99 


99 CSE 1288 


Momson 


11/30/99 


99 CSE 1324 


Wade 


12/15/99 


99 CSE 1334 


Reilly 


12/17/99 


99 CSE 1338 


Reilly 


12/17/99 


99 CSE 1419 


Momson 


12/13/99 


98 DCS 0631 


Wade 


12/15/99 


98 DCS 1769 


Momson 


06/25/99 


99 DCS 0480 


Gray 


10/18/99 


99 DCS 0482 


Wade 


09/10/99 


99 DCS 0505 


Phipps 


06/30/99 


99 DCS 0555 


Gray 


07/06/99 


99 DCS 0813 


Owens 


08/25/99 


99 DCS 0974 


Momson 


09/20/99 



PUBLISHED DECISION 
REGISTER CITATION 



♦ 



I 



JUSTICE 

Alarm Systems Licensing Board 

Terry Allen Bnckey v. Alarm Systems Licensing Board 
Travis Eric Reardon v. Alarm Systems Licensing Board 
Brian Anthony Bartimac v. Alarm Systems Licensing Board 
Paul Luke Walczak v. Alarm Systems Licensing Board 
Melvin T. Lohr v. Alarm Systems Licensing Board 
Bradford D. Penny v. Alarm Systems Licensing Board 
Benny L. Shaw v. Alarm Systems Licensing Board 
Tracey Larue Santana v. Alarm Systems Licensing Board 
Donald Eugene Boger v. Alann Systems Licensing Board 
Kajur Washburn v. Alarm Systems Licensing Board 
Timothy Chezere Sifford v. Alarm Systems Licensing Board 
Howard Douglas Self v. Alarm Systems Licensing Board 
Edward W. Hester v. Alarm Systems Licensing Board 
Steven Craig Holloway v. Alarm Systems Licensing Board 
Richard C Young \- Alarm Systems Licensing Board 



99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 
99DOJ 



0097 
0446 
0487 
0489 
0490 
0522 
0523 
0524 
0715 
0716 
1022 
1230 
1295 
1299 
1304 



Wade 

Phipps 

Morrison 

Owens 

Momson 

Momson 

Morrison 

Phipps 

Owens 

Owens 

Momson 

Reilly 

Mortison 

Momson 

Morrison 



05/21/99 
07/28/99 
05/25/99 
08/03/99 
05/24/99 
06/08/99 
06/08/99 
09/24/99 
07/29/99 
07/29/99 
09/24/99 
10/27/99 
1 2/03/99 
12/07/99 
1 2/03/99 



1329 



NORTH CAROLINA REGISTER 



Januan 1-4, 2000 



14:14 



CONTESTED CASE DECISIONS 



AGENCY 

Education and Training Standards Division 

kRock Steven Edwards v. Criminal Justice Ed- & Training Sids. Comni. 
FAnthony Scott Hughes v. Sheriffs' Ed. & Training Standards Coimn. 

Hal Pilgreen v. Cnminal Justice Ed. & Training Stds, Comin. 

Emma J. Riser v. Sheriffs' Ed. & Training Standards Coinm. 

Keith ."Mien Noms v. Sheriffs' Ed. & Training Standards Comm. 

Sherry Davis Kenney v. Cnminal Justice Ed. & Training Stds Comm. 

Bnan G. Mead v. Criminal Justice Education & Training Stds. Comm. 

Steven Randolph Russell v. Cnminal Justice Ed. & Training Stds. Comm. 

Russell Lee Yelverton v. Cnminal Justice Ed. & Training Stds. Comm. 

James Manon Massey v. Cnminal Justice Ed. & Training Stds. Comm. 

Mark E. Nanon v. Shenffs' Ed. & Training Stds. Commission 

Shean E. Taylor v. Shenffs' Ed. & Training Stds. Commission 

Dennis L. Ramsingh v. Sheriffs' Ed. & Training Stds. Commission 

Sandra G. Armstrong v. Shenffs' Ed. & Training Standards Comm. 

Edward L. Eusk v. Sheriffs' Ed. & Training Standards Comm. 

Tonnette Bemhury v. Shenffs' Ed. & Training Standards Comm. 

Terry Leon Jones v. Criminal Justice Education & Training Stds. Comm. 

Brenda J. Hines v. Shenffs' Education & Training Stds. Comm. 

George Hoke Powell. Jr. v. Cnmmal Justice Hd. & Training Stds. Comm. 

Private Protective Services Board 

Tn-City Secunties and James G. Hutcherson v. Pnvate Protective Svcs. Bd. 

Tn-City Secunties and James G. Hutcherson v. Private Protective Svcs. Bd. 

Ordie Hazy McFarland v. Pnvate Protective Services Board 

Thomas E. Mewhom v. Private Protective Services Board 

Michael Lynn Arter v. Private Protective Services Board 

Jeffrey S. Moore v. Private Protective Services Board 

Bonnie Mane Keller v. Pnvate Protective Services Board 

Shawn E. .Alexander v. Private Protective Services Board 

Ronald E. Sulloway v. Pnvate Protective Services Board 

Raymond Solomon v. Pnvate Protective Services Board 

Charles E. Evans. Jr. v. Private Protective Services Board 

awrence Martin v. Pnvate Protective Services Board 
William E. Ellis. Sr. v. Pnvate Protective Services Board 
Bohhy James Nicholson v. Private Protective Services Board 
Murray J. Degnan v. Pnvate Protective Services Board 
Thomas William Atchison v. Private Protective Services Board 
Mark Lavem Hewitt v. Private Protective Services Board 
Robert Steven Pekel v. Pnvate Protective Services Board 
Jacqueline Renee Haywood v. Private Protective Services Board 
Isaiah Komegay. Jr. v. Pnvate Protective Services Board 
Wayne Orlando Miller v. Private Protective Services Board 
Richard Asiedu v. Pnvate Protective Services Board 
Garland D. Melvin v. Pnvate Protective Services Board 
Dennis L. Young v. Pnvate Protective Services Board 
Jose V. Vargas v. Private Protective Services Board 
Gwendolyn L. Gray v. Private Protective Services Board 
Allen D. Edenbum v. Private Protective Services Board 
Chns George McCracken v. Private Protective Services Board 

PUBLIC INSTRUCTION 

Manin Wayne Fletcher v. St. Bd. of Educ. Dept of Public Instruction 
S.H. by and through her guardian and custodian. H.H. and H H v 

Henderson County Board of Education 
Paula Momll. individually/on behalf of John Momll v. Wake Cty. Schools 
S.L.F. and S.F.F. v. Charlotte-Mecklenburg Board of Education 
Marshall Scott Brannan v. Department of Public Instruction 
Matthew Weber, and his father and next fnend. Bnan Weber, and Bnan 

Weber v. Wilkes County Schools 
Michael Malhison v. Chariotte-Mecklenburg Board of Education 
)a\ id J. Dew v. Charlotte-Mecklenburg Board of Education 
)cborah F. Brogden v. State Board of Educanon 
Kenneth Wamngton v. Edgecombe County Schools 

•;TATE PERSONNEL 

I department of Agriculture 

■' -i.e. TroxlLT, Jr. v, Dept. of Agriculture and Consumer Services 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REfJISTER CITATION 


98 DOJ 0906 


Chess 


05/13/99 




98 DOJ 1530 


Chess 


05/12/99 




98 DOJ 1775 


Chess 


06/09/99 




98 DOJ 1793 


Gray 


06/07/99 




99 DOJ 0045 


Mann 


07/29/99 


14:04 NCR .351 


99 DOJ 0067 


Wade 


06/08/99 




99 DOJ 0106 


Gray 


10/07/99 




99 DOJ 0123 


Owens 


10/29/99 


14:11 NCR 928 


99 DOJ 0131 


Phipps 


08/11/99 




99 DOJ 0168 


Reilly 


10/1 1/99 




99 DOJ 0453 


Momson 


09/08/99 


14:07 NCR .568 


99 DOJ 0790 


Reilly 


09/29/99 




99 DOJ 0796 


Gray 


11/04/99 




99 DOJ 0844 


Mann 


09/24/99 




99 DOJ 0846 


Phipps 


09/29/99 




99 DOJ 0934 


Reilly 


09/29/99 




99 DOJ 1054 


Wade 


10/21/99 




99 DOJ 1 1 38 


Wade 


10/14/99 




99 DOJ 1363 


Chess 


12/08/99 




98 DOJ 1749*' 


Phipps 


09/02/99 




98 DOJ 1752*' 


Phipps 


09/02/99 




99 DOJ 0099 


Momson 


10/12/99 




99 DOJ 0101 


Owens 


07/30/99 




99 DOJ 0262 


Wade 


05/25/99 




99 DOJ 0488 


Momson 


05/24/99 




99 DOJ 0491 


Momson 


05/24/99 




99 DOJ 0492 


Owens 


07/19/99 




99 DOJ 0493 


Momson 


05/24/99 




99 DOJ 0494 


Momson 


05/25/99 




99 DOJ 0496 


Momson 


05/25/99 




99 DOJ 0526 


Momson 


10/25/99 




99 DOJ 0527 


Momson 


06/08/99 




99 DOJ 0528 


Phipps 


08/17/99 




99 DOJ 0529 


Gray 


n/29/99 




99 DOJ 1018 


Morrison 


09/21/99 




99 DOJ 1019 


Gray 


11/10/99 




99 DOJ 1020 


Gray 


11/10/99 




99 DOJ 1123 


Gray 


11/10/99 




99 DOJ 1290 


Momson 


12/07/99 




99 DOJ 1291 


Momson 


12/09/99 




99 DOJ 1293 


Momson 


12/09/99 




99 DOJ 1296 


Momson 


12/03/99 




99 DOJ 1301 


Momson 


12/03/99 




99 DOJ 1302 


Momson 


12/03/99 




99 DOJ 1303 


Momson 


12/03/99 




99 DOJ 1305 


Momson 


12/03/99 




99 DOJ 1417 


Momson 


1 1/29/99 




98EDCO0OI 


Chess 


09/21/994 




98EDC 1124 


Mann 


06/1 1/99 




98EDC 1205 


Gray 


09/24/99 




98EDC 1649 


Mann 


06/04/99 




98EDC 1796 


Owens 


07/1.3/99 


14:07 NCR .565 


99EDC0291 


Mann 


09/07/99 




99 EDC 0390 


Gray 


12/16/99 




99 EDC 0498 


Gray 


12/1.3/99 




99 EDC 0734 


Reilly 


10/05/99 




99 EDC 0955 


Reilly 


09/29/99 





99 OSP 06.59 



Chess 



07/27/99 



^4.14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1330 



CONTESTED CASE DECISIONS 



AGENCY 

Community Colleges 

Thomas Michael Chamberlin v. Department of Community Colleges 

Correction 

E. Wayne Irvin v. Department of Con'ection 
Pershield DeLoatch v. Department of Cortection 
Deborah Smith v. Department of Con-ection 
Maydean L. Taylor v. Department of Correction 

Ann McMillian v. Momson Youth Institution. Department of Correction 
Edward Alan Roper v. DOC. Div. of Pnsons. Western Youth Institute 
Shirley Sellars v. Department of Cortection 

Sean R. Dillard v. Dept. of Cortection. Pasquotank Cortectional Inst. 
DeCarlos Stanley v. Department of Correction 
Steve A. Matthews v. Department of Cortection 
Patnck Smith v. Department of Cortection 
Harry E. Kenan v, Capt, B.F. Lewis. Polk Youth Institution 
Robert Russell, Jr. v. Jeff Jones. Div of Community Cortections 
Judith Caves v. Department of Cortection 
Shirley Sellars v. Department of Cortection 

Richmond Fulmore v. Department of Cortection, Wake Cortectional 
Henry C. Parks v. DART/Admin.. Ann Shea. Edward McCall. Thomas 
G. Ivester 
Jerry D. Crawford v. Department of Cortection 99 OSP 0.*i77 
Walter L. Whitaker v. Capt. Ricky Johnson. Pasquotank Cort. Inst. 
Angelo .Alfonzo Smith v. Department of Cortection 
Charles Creegan v. Department of Cortection 
Kathi P. Brown v. NC Cortectional Institute for Women 
David J. Dennis v. Department of Cortections. Polk Youth Institution 
Tara King v. Department of Cortections 
Joyce Ann Bullock v, Polk Youth Institution 
Timothy Ramey v. Department of Cortection 
Curtis Lee Tucker v. Dept. of Cortectron ■ Caledonia 
Heather Williams v. Department of Cortection 99 OSP 1 163 

Crime Control and Public Safety 

Thomas Michael Chamberlin v. DCCPS. Center for Missing Persons 

North Carolina School for the Deaf 

Steve Crawford v. North Carolina School for the Deaf 
Danny Wilson Carson v. North Carolina School for the Deaf 
Enc Arden Hurley v. North Carolina School for the Deaf 

Employment Security Commission 

Russell J. Suga v. Employment Secunty Commission 

Environment and Natural Resources 

L. Clifton Cartoll \ , Dept of Natural Resources. Div. of Parks and 

Recreation 
Larry A. Campbell v. NC Wildlife Resources Commission 
Pathe Vivek v. Department of Environment & Natural Resources 

Health and Human Services 

Debbie L. Whitley v. Wake County Department of Social Services 

Vera Crenshaw v. DHHS, Julian F. Keith Ale. & Drug Abuse Trtmt, Ctr. 

Ivey G. Rhodes v. Pitt County Mental Health Center 

Odessa D. Gwynn v. Caswell County Health Department 

Dons Virginia Wearing v. Durham County Health Department 

Julia A. Cameron v. John Umstead Hospital. Health & Human Services 

Danny Jacob v. Onslow County Board of Health 

Jency Abrams v. Department of Health & Human Services 

Lisa Adams-Houghton v. Rockingham Co. Dept of Social Services 

Timothy Truzy v. Department of Health & Human Services 

Carlos D. Burks. Sr, v. North Carolina Special Care Center 

Donna Pittman v. Department of Health & Human Services 

Bryan Benson v. Durham Cty. Area MH/DD/S.AS Program 

Shirley C. Jones v. Department of Health & Human Services 

Odell Hudson v. Health & Human Svcs.. Dorothea Dix Hospital 

Enca Joynes v. Durham County Department of Social Services 



CASE 




NUMBER 


AL.I 


99 OSP 0286 


Phipps 


94 OSP 1791 


Momson 


98 OSP 1026 


Gray 


98 OSP 1126 


Chess 


98 OSP 1272 


Chess 


98 OSP 1275 


Chess 


98 OSP 1644 


Gray 


98 OSP 1788'" 


Gray 


98 OSP 1800 


Gray 


99 OSP 0027 


Morrtson 


99 OSP 0162 


Morrison 


99 OSP 0163 


Morrison 


99 OSP 02,57 


Phipps 


99 OSP 0258 


Lassiter 


99 OSP 0338 


Phrpps 


99 OSP 0386'" 


Gray 


99OSP04I6 


Mann 


99 OSP 05 12 


Momson 


Reilly 


06/02/99 


99 OSP 0644 


Gray 


99 OSP 0675 


Gray 


99 OSP 0765 


Reilly 


99 OSP 09 14 


Chess 


99 OSP 09 IS 


Chess 


99 OSP 0930 


Chess 


99 OSP 1065 


Wade 


99 OSP 1085 


Chess 


99 OSP 1097 


Wade 


Reilly 


12/1.3/99 


99 OSP 0596*' 


Gray 


99 OSP 0640 


Lassiter 


99 OSP 0641 


Lassiter 


99 OSP 0087 


Reilly 


96 OSP 1122 


Reilly 


98 OSP 09 14 


Gray 


99 OSP 0050 


Momson 


99 OSP 0956 


Chess 


97 OSP 0722 


Phipps 


98 OSP 04.56 


Gray 


98 OSP 0924 


Phipps 


98 OSP 1299 


Gray 


98 OSP 1432 


Reilly 


99 OSP 0053 


Momson 


99 OSP 01 29 


Gray 


99 OSP 0147 


Owens 


99 OSP 0278 


Gray 


99 OSP 03 16 


Gray 


99 OSP 0325 


Owens 


99 OSP 0444 


Monson 


99 OSP 05 16 


Gray 


99 OSP 0533 


Mann 


99 OSP 0609 


■Gray 


99 OSP 0671 


Gray 



DATE OF 
DECISION 



06/25/99 



05/18/99 
08/1 1/99 
06/22/99 
05/14/99 
05/12/99 
08/11/99 
09/30/99 
08/26/99 
06/22/99 
08/20/99 
10/14/99 
06/07/99 
09/29/99 
09/29/99 
09/30/99 
06/04/99 
09/22/99 



10/12/99 
1 1/04/99 
08/03/99 
12/10/99 
10/12/99 
1 1/08/99 
11/1,5/99 
11/22/99 
12/06/99 



08/16/99 



10/18/99 
10/18/99 
06/24/99 



05/26/99 



10/22/99 



11/10/99 
10/06/99 



09/27/99 
08/05/99 
07/09/99 
08/25/99 
06/18/99 
06/22/99 
10/12/99 
08/11/99 
11/04/99 
10/22/99 
08/25/99 
12/1.5/99 
08/31/99 
09/24/99 
07/07/99 
07/13/99 



PUBLISHED DECISION 
REGISTER CITATION 



♦ 



14:01 NCR 60 



14:11 NCR 945 



i 



14:12 NCR 1082 
14:12 NCR 1086 



14:11 NCR 936 



1331 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 |M 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Thomas Michael Chamberhn v. Off. of Juvenile Justice. Juvenile 99 OSP 067.V*^ Gray 

»| Services Division. 14"' District Court Division 

Cheryl Highsmith v. DHHS. Youth Svcs., New Hanover Reg. Juvenile 99 OSP 0763 Owens 

Detention Center 

Carolyn A. Carter v. Cleveland County Dept of Social Services 99 OSP lO.S.S Gray 

Veda B. Gill v. Durham County Department of Social Services 99 OSP 1090 Momson 

.■\nthony Ratcliff v. Department of Health & Human Services 99 OSP 1483 Phipps 

Johnston County 

Lili Romaine Lee v. County of Johnston 99 OSP 0456 Morrison 



08/16/99 

09/03/99 

11/29/99 
11/09/99 
09/22/99 



06/02/99 



Justice 

Thomas Michael Chainberlm v. Justice, Justice .•Academy 

Labor 

Robert C. .Adams v. Department of Labor 

Department of Public Instruction 

Billy McHachem \ Schools of Robeson County 
John Lee Herhin v. Smarkand Manor Training School 
Linda D. Chapman v. Lenoir County Public Schools 



99 OSP 0308 



99 OSP 0667 



99 OSP 0189 
99 OSP 0273 
99 OSP 0691 



Phipps 
Gray 



Wade 
Gray 
Reilly 



06/11/99 



07/28/99 



09/04/99 
08/04/99 
08/16/99 



State Auditor 

Antonio Allen Bolton v. Office of the N.C. State Auditor 



99 OSP 0979 



Wade 



11/22/99 



Transportation 

Michelle Maloney Wilkins v. Department of Transportation 

Judy S. Grindstaff V. Department of Transportation 

Charles W. Mc.Adams v. Dept. of Transportation. Div/Motor Vehicles 

Larry R. Lane v. Department of Transportation 99 OSP 010.5 

Ronald Roherson v. Dept. of Transportation, Right-of-Way Branch 

Shelvia Davis v. Department of Transportation 99 OSP 01.56 

ICarmalita Daniels v. Department of Transportation 
paul N. Hams v. Dept. of Transportation. Div of Motor Vehicles 
Carolyn Campell v. Dept of Transportation 
University of North Carolina 
Wanda Tioxler v. .A & T State University and Dr. Ray J. Davis 
Vivian Smith Hammiel, Ling-Chih C. Hsu and Joel A. Williams v. East 

Carolina University 
Vivian Smith Hammiel. Ling-Chih C. Hsu and Joel A- Williams v. East 

Carolina University 
Vivian Smith Hammiel. Ling-Chih C. Hsu and Joel A. Williams v. East 

Carolina University 
Jackie S. Flowers v. East Carolina University 
James A. Benton v. University of North Carolina at Charlotte 
Tracey L. Wilson v. North Carolina Central University 
Rex A. Coughenour v. University of North Carolina at Chapel Hill 
Anna .Anita Huff v. Dr. Lonnie Sharpe/Dr, Reza Salami-Coll./Engineenng 
Rex A. Coughenour v. Uni\ersity of North Carolina at Chapel Hill 
Thomas Michael Chamberhn v. UNC @ Chapel Hill. Dept. of University 

Housing. DiMsion of Student Affairs 
Halycon Tudie Blake v. University of North Carolina at Chapel Hill 
Bridgette R. Booker \ , Winston-Salem State University 
Rex A. Coughenour v. University of North Carolina at Chapel Hill 
Temperance T. Tobe v. North Carolina Central University 
James W. Murrell v. University of North Carolina at Chapel Hill 
Harold Richardson v. University of North Carolina at Charlotte 
.Mhertina Thompson v. Chancellor James Renick of NC A & T Univ. 



DEPARTMENT OF LABOR 

Bellacino's v. Department of Labor 



99DOL 1216 



DEPARTMENT OF TRANSPORTATION 

^eter Kay,, Stern v. Department of Transportation 

«fIVERSITY OF NORTH CAROLINA 

Stephanie A- Payne v. UNC Hospitals 
Barbara A. Russell v. UNC Hospitals 



98 OSP 0836 

98 OSP 1028 

99 OSP 0034 
Mann 

99 OSP 0142 
Owens 
99 OSP 0264 
99 OSP 0625 
99 OSP 0739 



97 OSP 08 19 
97 OSP 1268*- 

97 OSP 1269*- 

97 OSP 1270*- 

98 OSP 1618 

99 OSP 0047 
99 OSP 0388 
99 OSP 0517*" 
99 OSP 0599 
99 OSP 0623*" 
99 OSP 0674*' 

99 OSP 0686 
99 OSP 0731 
99 OSP 08.^*" 
99 OSP 0865 
99 OSP 1102 
99 OSP 1 208 
99 OSP 1578 



Reilly 



99 DOT 0668 



99 UNC 0375 
99 UNC 0540 



Momson 

Gray 

Mann 

06/11/99 

Momson 

06/23/99 

Gray 

Gray 

Reilly 



Phipps 
Phipps 

Phipps 

Phipps 

Reilly 
Wade 
Chess 
Reilly 
Chess 
Reilly 
Gray 

Gray 

Chess 

Reilly 

Chess 

Momson 

Wade 

Gray 



12/14/99 



Owens 



Momson 
Gray 



05/20/99 
09/30/99 
06/23/99 

06/08/99 

08/20/99 
12/02/99 
12/0.3/99 



08/02/99 
07/06/99 

07/06/99 

07/06/99 

06/24/99 
10/08/99 
12/06/99 
08/27/99 
07/16/99 
08/27/99 
08/16/99 

07/08/99 
09/03/99 
08/27/99 
08/24/99 
11/29/99 
11/15/99 
12/17/99 



14:14 NCR 1336 
14:14 NCR I3.W 



07/29/99 



06/21/99 
08/1 1/99 



14.14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1332 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AIJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Robin Perkins Stephens v. UNC Hospitals 
Rita Jo Kincaid v. UNC Hospitals 
Rita Jo Kincaid v. UNC Hospitals 
Edna Heath v. UNC Hospitals 



99 UNC 0563 
99 UNC 0746* 
99 UNC 0747* 
99 UNC 0943 



Owens 
Reilly 
Reilly 
Chess 



07/21/99 
08/09/99 
08/09/99 
10/15/99 



♦ 






1333 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 mUu 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 EHR 1660 



'NEUSE RIVER FOUNDATION. NEUSE RIVERKEEPER, 
AND ALLIANCE FOR A RESPONSIBLE SWINE 
INDUSTRY, INC 

Petitioners, 



NORTH CAROLINA SOIL AND WATER CONSERVATION 

COMMISSION, 

Respondent. 



TEMPORARY RESTRAINING ORDER 



This matter came on tor hearing before the undersigned on Thursday. December 9. 1999, on Petitioners" Motion tor a 
Temporary Restraining Order, pursuant to the North Carolina Administrative Procedures Act, N.C. Gen. Stat. § 150B-33(b)(6), and 
Rule 65(b) of the North Carolina Rules of Civil Procedure, and after notice to the Respondent. Having fully considered the matters 
of record and the arguments of counsel, including the arguments of counsel for movants for intervention, the undersigned hereby 
makes the following: 

FINDINGS OF FACT 

1. On November 5, 1999, the North Carolina Soil and Water Conservation Commission adopted "Soil and Water 
Conservation BMPs for Animal Waste Management Systems Impacted by Hurricanes Dennis. Floyd, Irene and Other Chronic Rain 
Events,"" referred to in this Order as the '"modified BMPs." 

2. The modified BMPs took effect on November 5, 1999, and will remain in effect until March 3\, 2000. 

3. The modified BMPs apply only to animal operations that store animal waste in open lagoons and spray the liquid waste 
onto fields. 



4. The animal waste contains nitrogen and phosphorous. Nitrogen and phosphorous are both plant nutrients and water 
pollutants. 

5. The North Carolina Cooperative Extension Service and the Natural Resources Conservation Service (a division of the 
U.S. Department of Agriculture) have published the agronomic rates for the application of nitrogen to different crops. The NCCES 
and NRCS recommendations have been incorporated by reference into the regulations of the Soil and Water Conservation 
Commission. 

6. The modified BMPs adopted by the SWCC authorize the application of animal waste at rates that greatly exceed 
agronomic rates. 

7. An agronomic rale is designed to provide a balance between the amount of nitrogen (or other nutrients) in the animal 
waste and the amount of nitrogen the receiving crop needs to grow. It is also designed to minimize the amount of nitrogen (or other 
nutrients) that is lost to the environment. 

8. The application of animal waste in excess of agronomic rates will result in the contamination of groundwater and runoff 
into surface waters, presenting a substantial risk of human exposure to harmful nitrates in drinking water and substantial risk of 
exacerbating existing surface water quality problems, including algae blooms and fish kills. 

9. Petitioners" members derive their drinking water from groundwater supplies that likely will be contaminated from the 
over-application of animal waste. The ingestion of water contaminated with nitrates can cause serious illness or death. Nitrate 
.."ontamination in water cannot be detected without chemical analysis. 

10. Petitioners' members use the creeks, rivers, sounds and estuaries that will be polluted from the runoff resulting from 
iver-application of animal waste for fishing, boating and swimming and other pursuits. Their interests will be irreparably harmed 
ly the increased degradation of these waters caused by the modified BMPs. 

1 1. TTie litigation of this case would normally extend beyond March 31, 2000, before a final agency decision is reached. 



^4.14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1334 



CONTESTED CASE DECISIONS 



Absent preliminary relief, petitioners would have no meaningful remedy for their claims. 

Based upon these Findings of Fact, the undersigned makes the following: 

f 
CONCLUSIONS OF LAW 

1 . The General Assembly has adopted legislation that requires animal waste to be applied at a rate that assures a balance 
between the nutrients applied and the nutrient needs of the crops to which the waste is applied. N.C. Gen. Stat. § I43B-2I5. 10C(e)(7). 

2. The General Assembly has delegated responsibility for regulating the state's animal waste operations to the 
Environmental Management Commission. N.C. Gen. Stat. §§ 143B-2l5.l(a)( 12); I43B-2I5.10B. 

3. Regulations adopted by the Environmental Management Commission prohibit the application of animal waste in excess 
of agronomic rates. 1 5A N.C.A.C. 2H.02 1 7(a)( 1 )(H)(iv). 

4. In 1 997, the Environmental Management Commission adopted a statewide General Permit for Swine Waste Operations 
that prohibits the application of animal waste in excess of agronomic rates. Swine Waste Operation General Permit \ II.4. 

5. Because these authorities preclude the SWCC from adopting BMPs that allow swine waste to be applied in excess of 
agronomic rates, the petitioners are likely to succeed on the merits of their claims. 

6. The petitioners are likely to suffer irreparable harm if the actions authorized by the modified BMPs continue during the 
pendency of this action. " Generally, when the proof tends to show with reasonable certainty that there is a well grounded 
apprehension of danger to health or life by reason of the threatened use of adjacent property, such user should be restrained until the 
final hearing. ...Equity does not require a man to stand idle, until his family has sickened or died." Causby v. High Peiiii Oil Co., 
244 N.C. 235, 241. 93 S.E. 2d 79 (1956). 

7. Denial of injunctive relief would foreclose adequate relief to the petitioners because of the time-limited nature of the 
modified BMPs. The most important consideration when petitioners have shown a likelihood of success on the merits and seek an^ 
injunction as their final remedy is "whether the issuance of an injunction is necessary for the protection of [petitioners'] rights during^ | 
the course of litigation. ..." A.E.P. Industries, Inc., v. McCliire, 308 N.C. 393, 406, 302 S.E.2d 754. 762 (1983). 

8. Administrative law judges may stay contested agency actions pending the outcome of cases, upon such terms as they 
deem proper subject to the provisions of G.S. § lA-l,Rule65. N.C. Gen. Stat. § 150B-33(b)(6). 

9. Petitioners are not required to post security, as the restraint will do the respondent no material damage and there is no 
proof that the respondent will suffer damage or loss by enjoining the application of swine waste at rates greater than agronomic rates. 

Based upon these findings of fact and conclusions of law, the undersigned issues the following: 

ORDER 

Petitioners' Motion for Temporary Restraining Order is granted. The Respondent, North Carolina Soil and Water 
Conservation Commission, and anyone acting in concert with it are hereby restrained from authorizing, approving, condoning or 
engaging in the application of swine waste at rates greater than agronomic rates. 

This Order will remain in effect until a hearing on petitioners' Motion for Preliminary Injunction. The Temporary Restraining 
Order will expire at 2:32 p.m. on the 20'^ day of December, 1999. 

A hearing on Petitioners' Motion for Preliminary Injunction will take place on the 20"' day of December, 1999, at 9:00 a.m. 
at the Office of Administrative Hearings in the Lee House, 422 North Blount Street, Raleigh, North Carolina. 



This the 10'" day of December, 1999. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



\k 



1335 NORTH CAROLINA REGISTER January 14, 2000 14:14 Wl 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
kCOUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 OSP 0625 



PALL N. HARRIS 
Petitioner, 

V. 

NORTH CAROLINA DEPT. OF TRANSPORTATION, 

DIVISION OF MOTOR VEHICLES, 

Respondent. 



RECOMMENDED DECISION 



This matter was heard before Beecher Gray, Administrative Law Judge, on Oetober 1, 1999 in Raleigh, North Carohna. 

APPEARANCES 



For the Petitioner: 



For the Respondent: 



1. 



Marvin Schiller, Attorney at Law 
David G. Schiller, Attorney at Law 
Raleigh, North Carolina, appearing 

Christine M. Ryan, Assistant Attorney General 
Kimberly Hunt, Associate Attorney General 
Raleigh, North Carolina, appearing 

ISSUES 



Whether Respondent terminated Petitioner without just cause in violation of N.C. Gen. Stat. § 126-35? 



2. Whether Respondent failed to undertake reasonable efforts to locate Petitioner and determine whether he intended 

to return to work, in violation of 25 NCAC 1D.0518 and the State Personnel Manual, Appointment and Separation, Section 5, Page 
6.1. 

FINDINGS OF FACT 

1 . Petitioner Paul N. Harris, Jr. was hired by Respondent in October 1 987. Petitioner continued his employment w ith 
Respondent until he was terminated by his supervisor Ms. Mary L. Beamon by letter dated April 12, 1999. 

2. Petitioner held the position of Problem Resolution Officer. His salary was approximately $30,000.00 per year. 
His pay grade was 65. 

3. Petitioner was a "career employee" within the meaning of N.C. Gen. Stat. Chapter 126 (the Personnel Act). 
Petitioner had received no verbal or written warnings prior to his termination on April 12, 1999. 

4. Petitioner'sformer wife filed various criminal charges against him in January 1999 and February 1999. Asa result. 
Petitioner was incarcerated in the Wake County jail for a period of approximately one ( 1 ) or two (2) days, on each occasion. 

5. On March 26, 1999, Petitioner was arrested at work and incarcerated in the Wake County jail. 

6. Pursuant to 25 NCAC I D.0518 and the State Personnel Manual, Appointment and Separation, Section 5, Page 6. 1 ., 
in employee who fails to return to work without giving written or verbal notice may be deemed to have voluntary resigned, so long 
IS the employer-agency undertakes "reasonable efforts to locate the employee and determine . . . [whether] ... the employee is 
ntending to return to work." 

7. On April 1 , 1999, Supervisor Beamon wrote and sent by certified mail return receipt a letter informing Petitioner 
at if he did not report to work by April 7, 1999, Respondent would deem his failure to report to work his voluntary resignation. 

As. Beamon addressed her April 1, 1999, letter to Petitioner at "662 A Tiffany Blvd.. Rocky Mount," where Petitioner did not live. 



4:14 



NORTH CAROLINA REGISTER 



January 14, 2000 



1336 



CONTESTED CASE DECISIONS 



This address was the address listed in Petitioner's records maintained by Respondent. Respondent had actual icnowledge that 
Petitioner did not Hve at this address. 

8. The April 1 , 1999, letter was returned to Respondent. The envelope stated that the letter was "undeliverable asB 
addressed." (Petitioner's Exhibit 1) 

9. The criminal charges against Petitioner were dismissed by a Wake County judge. Petitioner was released from 
Wake County jail prior to April 7, 1999, and he reported to work upon his release from jail. Supervisor Beamon never informed 
Petitioner that she had attempted to mail to Petitioner the voluntary dismissal letter dated April 1, 1999. 

10. On or about April 7, 1999, Petitioner explained to his Supervisor Beamon that his former wife was filing false 
charges against him, that there was nothing he could do to stop her, but that he was working through the situation to the best of his 
ability. 

11. Petitioner never indicated to Supervisor Beamon, ortoany other of Respondent's agents, that he intended to resign 
from his employment with Respondent. 

12. On April 7, 1 999, Petitioner was arrested at work in the presence of many co-workers and was incarcerated the same 
day. Petitioner called Supervisor Beamon and informed her of the charges on April 7, 1999 after he arrived at the Wake County jail. 
Petitioner told Supervisor Beamon that he could not come to work and did not know exactly when he could return. Petitioner was 
in the Wake County jail from April 7, 1999 until April 21, 1999. 

13. On April 1 2, 1 999, Supervisor Beamon wrote and sent by certified mail return receipt a letter informing Petitioner 
that if he did not report to work by April 15, 1999, Respondent would deem his failure to report to work his voluntary resignation. 
Supervisor Beamon attempted to mail the April 1 2, 1 999, letter to Petitioner at "662 A Tiffany Blvd., Rocky Mount," where Petitioner 
did not live. 

14. Supervisor Beamon knew from other employees in Respondent's office that Petitioner no longer lived at the Rocky 
Mount address. 



15. Neither Supervisor Beamon nor any other agent of Respondent made any attempt to contact Petitioner at the Wake 
County jail, in person, by telephone or by mail, or at his current home address between April 7, 1999 and April 12, 1999. 

1 6. On April 21,1 999. the day of Petitioner's release from Wake County jail. Petitioner attempted to contact Supervisor 
Beamon by telephone. At this time, Mr. Michael E. Bryant, Director of Administration and Adjudication for the Driver License 
Section, received Petitioner's telephone call and told Petitioner that he did not care where Petitioner was, because Petitioner was not 
at work, and Petitioner had been terminated. 

17. Petitioner had accumulated approximately twenty (20) days of earned vacation time when he was discharged on 
April 12, 1999. 

1 8. Respondent did not undertake reasonable efforts to locate Petitioner and determine whether he intended to return 
to work prior to discharging him on April 12, 1999. 

CONCLUSIONS OF LAW 

1. Petitioner has the burden of proving that he was terminated without just cause in violation of N.C. Gen. Stat. § 126- 
35. 

2. Petitioner has proven by a preponderance of the evidence that Respondent terminated him without just cause in 
violation of N.C. Gen. Stat. § 126-35. 

3. Respondent's failure to undertake reasonable efforts to locate Petitioner and determine whether he intended to return 
to work was a violation of 25 NCAC 1 D.05 1 8 and the State Personnel Manual, Appointment and Separation, Section 5, Page 6. 1 . 

RECOMMENDED DECLSION ' 



< 



1337 NORTH CAROLINA REGISTER January 14, 2000 14:14 



CONTESTED CASE DECISIONS 



> 



Petitioner is entitled to reinstatement to the position of Problem Resolution Officer or substantially similar position with full 
back pay accruing from the date he was terminated until paid, further appropriate adjustment of Petitioner's salary in view of any 
across the board legislative salary increase, all other benefits of continuous State employment, attorneys fees and costs, including 
|deposition and transcript costs. Petitioner's personnel file should be appropriately rectified so as to retlecl the fact that he was 
terminated without just cause. Any and all documents in his personnel file which indicate to any degree a contrary fact should be 
removed. Petitioner shall be retrained if he is placed in a substantially similar position rather than reinstated to his former position. 



ORDER 

It is hereby ordered that the agency making the final decision in this matter serve a copy of the final decision to the Office 
of Administrative Hearings, PO Drawer 27447, Raleigh, NC 2761 1-7447, in accordance with N.C. Gen. Stat. § 150B-36(a) 

NOTICE 

The Recommended Decision shall be reviewed by the State Personnel Commission in accordance with its rules and procedure 
established by the North Carolina Administrative Code. 

This the 2"'' day of December, 1999. 



Beecher Gray 
Administrative Law Judge 



4:14 NORTH CAROLINA REGISTER January 14, 2000 1338 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 OSP 0739 



♦ 



CAROLYN CAMPELL 
Petitioner, 



NCDOT-DOT, 

Respondent. 



RECOMMENDED DECISION 



This matter came on for hearing before the undersigned Judge presiding over the November 3, 1999 session of the Office 
of Administrative Hearings in Raleigh, North Carolina. The Petitioner was represented by William Woodward Webb of The Edmisten 
& Webb Law Firm and the Respondent was represented by Christine Ryan and Kimberly Hunt of the Attorney General's Office. 

After hearing the evidence presented, the arguments of counsel and reviewing all pleadings and submission of the parties, 
the undersigned Judge makes the following recommended Findings of Fact, Conclusions of Laws and Order in this matter. 

FINDINGS OF FACT 

1 . On October 5, 1 998. the Petitioner took a lateral transfer from her position with the North Carolina Department of 
Health and Human Services to the North Carolina Department of Transportation, DMV-Enforcement Section ("DMV" or "the 
Respondent"). 

2. The Petitioner was and still is employed with the Respondent as a Processing Assistant IV. 

3. On October 31,1 998, the Petitioner noticed the first sign of aggravation of her asthma at DMV. 



4. In November of 1998, the Petitioner visited a physician regarding her asthma. The physician wrote her a 
prescription for steroids. 

5. In December of 1 998, the Petitioner again visited her physician regarding her asthma. The physician wrote her a 
second prescription for steroids which was not as strong as the tlrst prescription. 

6. During the week of January 3-8, 1 999. the Petitioner was assigned to purge files from file cabinets along with four 
other employees. During the same week, painters started painting on the same floor of the Theft Section of the DMV-Enforcement 
Section. 

7. On January 10, 1999, the Petitioner visited the emergency room ofRex Hospital and was admitted into Rex Hospital 
for a severe asthma attack needing intravenous medication and oxygen support. 



I 



8. 



The Petitioner was discharged from Rex Hospital on January 15, 1999. 



9. On January 15,1 999, the Petitioner's treating physician. Dr. Josephine Brown. MD, wrote a letter to the Petitioner's 
employer stating that the Petitioner is "severely allergic to dust and to paint fumes" and recommended that she not be exposed to that 
environment. 

10. On January 25, 1999, the Petitioner attempted to return to work. She was informed that keeping and dealing with 
files were an essential function of the job. She was offered a face mask and removal from the area when painting as a job 
accommodation. 



II. The Petitioner's treating physician. Dr. Josephine Brown, continued to advise that she not be exposed to a work 

environment in which she would be exposed to dust and paint fumes. Because the Petitioner's treating physician did not clear heri 
to return to work in the presence of old. dusty files, the Respondent's agent sent the Petitioner home on January 25, 1 999. ' 



12. 



On January 28, 1 999, Mr. Ronald Oates, the Department of Transportation's ADA Coordinator, in conjunction with 



1339 



NORTH CAROLINA REGISTER 



January 14, 2000 



14:14 



CONTESTED CASE DECISIONS 



Mr. Donald Crooke, an expert in ADA law and guidelines, and Mr. Robert Owens, the State ADA Coordinator, wrote an interoffice 
memorandum recounting facts as essentially set forth in paragraphs 1 - 1 1 above, and recommending that DMV and DOT Personnel 
respectively search within to locate possible vacancies for a Processing Assistant IV or similar job, and recommending the following 

kjob accommodations as reasonable: 1. A work environment that is well ventilated; 2. No open paper files and excessive dust; and 

'3. No paint or other fumes. 

13. On February 15, 1999, Dr. Brown repeated her recommendations to the Respondent in writing. 

14. On February 18, 1999. the Respondent sought a consultation with Dr. Craig LaForce, an allergist. The Petitioner 
saw Dr. LaForce on March 1 3, 1 999. Dr. LaForce' s consultation consisted of a review of the Petitioner's medical records and talking 
with her. Dr. LaForce did not do any physical examination of the Petitioner nor did he render medical care and treatment. 

15. As aresult of the consultation with Dr. LaForce, the Respondent proposed that the Petitioner return to her original 
job, with increased medication, with continuous monitoring of her "peak flow meter measurements," and purchase by DOT of a 
HEPA filtration system. TTie system was intended to be located at the Petitioner's desk. These recommended accommodations were 
communicated to the Petitioner by the Respondent by letter dated March 19, 1999. Even though Dr. LaForce had done no physical 
examination of the Petitioner nor rendered any medical care and treatment to the Petitioner, and even though there is no evidence in 
the record that he himself makes such a claim, the Respondent insisted on considering Dr. LaForce as the Petitioner's treating 
physician, and decided that the consulting recommendations of Dr. LaForce would be considered as an authorization to return to work 
by the Petitioner's treating physician. 

16. The Petitioner's actual treating physician was Dr. Brown. Even in light of Dr. LaForce's recommendations. Dr. 
Brown continued to recommend against a return to the original workplace under any circumstances because of the Petitioner's severe 
allergy to dust and dust miles and the severity of her January 1 999 asthma attack. 

17. On April 5. 1999, the Petitioner received a letter from the Respondent insisting that she return to work at 8:00 a.m. 
on Wednesday, April 8, 1999, at her old position, or be considered to have resigned. 

1 8. Following her treating physician's advice, the Petifioner did not return to her former job. 

19. From and after January 25, 1999, the Petitioner remained willing and able to accept alternative positions with the 
Respondent, in different buildings, and which met the reasonable accommodation recommendations developed by Messrs, Oates, 
Crooke and Owens, the ADA experts, as set out by Mr. Oates in his January 28, 1999, memorandum referenced in paragraph 12 
above. The Petitioner applied for several such positions, and was turned down for these positions by the Respondent. 

20. The Respondent has work sites in buildings other than the building to which the Petitioner was originally assigned. 

2 1 . Because of her severe allergy and asthmatic condition the Petitioner is a qualified handicapped individual who has 
a "handicapping condition" within the requirements of N.C.G.S. § 168A-3 (4) and who is entitled to reasonable accommodations for 
her condition as a matter of law. 

22. The respondent has failed to provide any reasonable accommodation to the Petitioner. 

23. The Petitioner did not voluntary resign her position with the Respondent and was not dismissed. 

CONCLUSIONS OF LAW 

1 . The Office of Administrative Hearings has jurisdiction over the subject matter of this action and the parties hereto. 

2. The Petitioner, as a handicapped individual under the North Carolina General Statutes, is entitled to reasonable 
jccommodations under both North Carolina law and the Federal Americans with Disabilities Act. 

3. The Petitioner requested reasonable accommodations from the Respondent and reasonable accommodations were, 
n fact, developed by a panel of ADA experts employed by the State of North Carolina (two of whom were employed by the 
Respondent). Such accommodations included reassignment of the Petitioner to various other positions (or sites) in other DOT 
luildings which positions were available and which positions she was qualified to fill. 



4:14 NORTH CAROLINA REGISTER January 14, 2000 1340 



CONTESTED CASE DECISIONS 



4. The Respondent was not satisfied with the reasonable accommodations identified and requested by the Petitioner 
and concurred in by her treating physician. Dr. Josephine Brown, as well as by the panel of State ADA experts referred to above in 
paragraph 1 2 of the Findings of Fact because it would have meant finding the Petitioner a different workplace. The Respondent then 
tried to supplant Dr. Brown with a consultant chosen and paid by the Respondent. That consultant's recommendations stating thalB 
the Petitioner could return to the original workplace with certain accommodations were deemed inadequate by the Petitioner's treating 
physician. Dr. Brown. 

5. The Respondent's attempts to provide reasonable accommodations fall far short of those required by the Petitioner 
as evidenced by her treating physician's recommendations and also by those recommendations of the aforementioned panel of State 
ADA experts and, therefore, the Respondent has not furnished the Petitioner with reasonable accommodations as mandated by law 
and which would have provided substantial relief to the Petitioner with respect to her handicapping condition. 

6. Furnishing the reasonable accommodations requested by the Petitioner would not create an undue hardship on the 
Respondent. 

7. The Petitioner did not voluntarily resign from her position with the Respondent nor was she dismissed. 

8. The Petitioner is entitled to the reasonable accommodations which she has sought, back and forward wages, 
including benefits, and, additionally, to an award of her costs and attorney's fees. 

ORDER 

It is recommended, in accordance with the foregoing Findings of Fact and Conclusion of Law, that the State Personnel 
Commission enter the following Order in respect to this case: 

1. That the Petitioner did not voluntarily resign nor was she dismissed from her position as a Processing Assistant IV 
with the Respondent. 

2. That the Petitioner be classified as a handicapped person under the provisions of N.C.G.S. § l68A-3(4) and theM I 
Americans with Disabilities Act. ^ 

3. That, as a handicapped individual, the Petitioner is entitled to "reasonable accommodation" in respect to the 
performance of her position as a Processing Assistant IV with the Respondent, 

4. That the Respondent provide the Petitioner with reasonable accommodations in the following particulars: 

a. By reassigning the Petitioner to any job function within NCDOT for which 

she is qualified which will reasonably accommodate her handicapping 
condition. 

5. That the Respondent pay to the Petitioner all back wages (and benefits) since February, 1 999 and all forward wages 
until she is returned to work with reasonable accommodations. 

6. That the Petitioner be awarded all attorney's fees and costs and that the Respondent be required to pay all attorney's 
fees and costs incurred by the Petitioner in the prosecution of this case. 

7. That the Respondent be enjoined, permanently, from failing to provide the Petitioner reasonable accommodations 
in respect to her handicapping condition. 

This the 3rd day of December, 1999. 



ROBERT ROOSEVELT REILLY, JR. 

Administrative Law Judge 



f 



1341 NORTH CAROLINA REGISTER January 14, 2000 14:14 



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